Com. v. Moses, R. ( 2021 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA ROY MOSES :
:
Appellant : No. 1067 EDA 2020
Appeal from the PCRA Order Entered March 3, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0001275-2012
BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.
MEMORANDUM BY OLSON, J.: FILED: MAY 17, 2021
Appellant, Joshua Roy Moses, appeals pro se from the order entered on
March 3, 2020, which dismissed his petition filed under the Post-Conviction
Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We previously summarized the underlying facts of this case:
On November 17, 2011, Appellant was arrested during the
execution of a search warrant at an apartment rented by
Angel Morales . . . in Philadelphia. While police officers were
searching the apartment, they observed Appellant stepping
away from an open window. On the ground outside the
window, the officers discovered several bags of crack
cocaine, marijuana, and oxycodone along with a broken
plate, a razor blade[,] and a cell phone. Appellant was
charged with [possession of a controlled substance with the
intent to deliver (“PWID”)] and other drug-related offenses.
Appellant moved to suppress the evidence seized during the
execution of the warrant. On April 28, 2015, the trial court
denied Appellant's suppression motion, and the case
immediately proceeded to a jury trial against Appellant and
two co-defendants, Morales and Glen Harvill. On May 1,
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2015, the jury found Appellant guilty of PWID and possession
of drug paraphernalia.
Commonwealth v. Moses, 190 A.3d 753 (Pa. Super. 2018) (unpublished
memorandum) at 1-2, appeal denied, 196 A.3d 204 (Pa. 2018).
On August 19, 2015, the trial court sentenced Appellant to serve six to
12 years in prison for his convictions. We affirmed Appellant’s judgment of
sentence on April 30, 2018 and the Pennsylvania Supreme Court denied
Appellant’s petition for allowance of appeal on October 18, 2018. See id.Appellant filed a timely, pro se PCRA petition on November 23,
2018. Appellant raised the following claims in his pro se petition:
1. “Counsel was ineffective for failing to seek a plea offer or
communicate what was being offered;”
2. “Trial counsel was ineffective for failing to conduct a
reasonable pre-trial investigation, seek discovery, [and]
interview defense witnesses;”
3. “Trial counsel rendered ineffective assistance for failing to
object at sentencing to false information used by the court
that was not included in any pre-sentence investigation
report;”
4) “That the 6111 charge was dismissed at the preliminary
hearing, but counsel did not file a motion to exclude that
information from [Appellant’s] trial;”
5) “That [Appellant] did in fact live in the residence as both
codefendants testified to at trial;”
6) “That trial counsel filed an omnibus pre-trial motion to
preclude the government from introducing proofs of
residence, which severely prejudiced [Appellant’s] defense
and worked to his actual and substantial disadvantage,
affecting the entire trial with errors of constitutional
dimensions;”
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7) “That counsel failed to offer evidence of [Appellant’s]
reasonable expectation of privacy at trial;”
8) “That counsel failed to photograph the inside and outside
of the property to show that others had access to that area
of the yard, as the codefendant testified when asked, that
there are several windows looking out into this area;”
9) “That Agent Hasara testified it appeared to him that
[Appellant] had just been moving into that room;”
10) “That counsel rendered ineffective assistance in failing to
adequately communicate with [Appellant] before trial;”
11) “Counsel rendered ineffective assistance by failing to
establish [an] expectation of privacy in the 1925(b)
statement.”
Appellant’s Pro Se PCRA Petition, 11/23/18, at 3-5 (some capitalization
omitted).
The PCRA court appointed counsel to represent Appellant during the
proceedings and counsel filed an amended PCRA petition on Appellant’s behalf.
Within the amended petition, counsel repeated some of the claims Appellant
raised in his initial, pro se petition and counsel raised a number of additional
ineffective assistance of counsel claims. See Amended PCRA Petition, 8/1/19,
at 3-4.
On February 6, 2020, the PCRA court notified Appellant that it intended
to dismiss his petition in 20 days, without holding a hearing, as it concluded
that the claims in the petition were meritless. Trial Court Order, 2/6/20, at
1; see also Pa.R.Crim.P. 907(1). The PCRA court finally dismissed Appellant’s
petition on March 3, 2020. PCRA Court Order, 3/3/20, at 1.
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On April 29, 2020, Appellant filed a pro se notice of appeal and
accompanied this notice with a statement of errors complained of on appeal,
pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).1 Appellant
raised the following claims in his Rule 1925(b) statement:
[1.] The [PCRA] court abused its discretion in finding no merit
to the claims raised in the PCRA petition, and denying the
petition without a hearing, where trial counsel failed to
conduct a reasonable pretrial investigation, and filed a motion
to suppress key evidence (taken from [Appellant’s] pockets
inside the residence where [Appellant] was present, that
established a reasonable expectation of privacy).
[2.] The [PCRA] court abused its discretion in finding no merit
to the claims raised in the PCRA petition, and denying the
petition alleging trial counsel’s ineffectiveness without a
hearing, insofar as [Appellant] claimed in his PCRA petition
____________________________________________
1 On March 16, 2020, the Pennsylvania Supreme Court declared a general,
statewide judicial emergency because of the coronavirus that causes
COVID-19. In re: General Statewide Judicial Emergency, 228 A.3d 1281(Pa. 3/16/20) (per curiam). In its subsequent orders, the Supreme Court
expanded the scope and extended the length of the judicial emergency.
Further, as is relevant to the case at bar, the Supreme Court generally
suspended “all time calculations for purposes of time computation relevant to
court cases or other judicial business, as well as time deadlines.” See In re:
General Statewide Judicial Emergency, 228 A.3d 1283 (Pa. 3/18/20) (per
curiam). As to the general suspension of time calculations and deadlines, on
April 28, 2020, the Supreme Court ordered: “legal papers or pleadings (other
than commencement of actions where statutes of limitations may be in issue)
which are required to be filed between March 19, 2020, and May 8, 2020,
generally shall be deemed to have been filed timely if they are filed by close
of business on May 11, 2020.” In re: General Statewide Judicial
Emergency, 230 A.3d 1015 (Pa. 4/28/20) (per curiam) (emphasis omitted).
The trial court dismissed Appellant's petition on March 3, 2020. Thus, in the
absence of the general, statewide judicial emergency, Appellant's notice of
appeal would have been due on or before April 2, 2020. See Pa.R.A.P. 903(a).
However, the Pennsylvania Supreme Court's April 28, 2020 order extended
Appellant's filing date to May 11, 2020; and, since Appellant filed his notice of
appeal on April 29, 2020, Appellant's notice of appeal is timely.
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that [trial counsel] failed to object at trial to the witnesses[’]
testimony, that [Appellant’s] window was the only window
facing the area where drugs were found outside the
residence, (photos of the property would have disproved this,
as well as the [officers’] inconsistent testimony that
[Appellant] was in the third floor and second floor bedroom,
or an interview before trial, or questions at trial to this
witness) who testified, a simple question from counsel as to
who else had access to this area would have raised a
reasonable doubt as to [Appellant’s] culpability, since the
affidavit in support of the search warrant authorizing the
search did not set forth probable cause to search the
residence as the facts known to the issuing authority did not
establish that it was more likely than not or probable that
contraband or evidence of a crime was located in the property
searched, because the items sought in the warrant were not
contraband or evidence of criminal activity.
[3.] The [PCRA] court abused its discretion in finding no merit
to the claims raised in the PCRA petition, and denying the
petition alleging trial counsel’s ineffectiveness without a
hearing, where court-appointed PCRA counsel failed to
present any of [Appellant’s] meritorious claims with
argument or analysis which constituted deficient performance
under the first prong of Strickland v. Washington[, 466
U.S. 668 (1984)] analysis – meaning that PCRA counsel’s
representation fell below an objective standard of
reasonableness. Relief is unavailable for undeveloped claims
with insufficient argument which is the functional equivalent
of no argument at all.
[4.] The [PCRA] court abused its discretion in finding no merit
to the claims raised in the PCRA petition, and denying the
petition alleging trial counsel’s ineffectiveness without a
hearing, where PCRA counsel characterized all of the issues
to be presented at an upcoming evidentiary hearing which
prompted [Appellant] to file written objections to counsel . .
. and then to the court. . . . [Appellant] also wrote a letter
to Judge Kennedy [] that was not docketed, and a motion to
the court [], requesting that the court remove counsel and
appoint new counsel. A lawyer performs deficiently when
there is simply no basis to believe that counsel’s failure to
argue the issue on appeal was a strategic choice. PCRA
counsel did not appropriately discharge his obligation to
review the entire case file and effectively communicate with
[Appellant] considering counsel’s caseload. [PCRA counsel]
never met with [Appellant], never asked any questions,
never explored what [Appellant] meant or what he intended
with the pro se PCRA petition, and never followed up with
[Appellant] or [Appellant’s] wife, who reached out on
[Appellant’s] behalf.
[5.] The [PCRA] court abused its discretion in finding no merit
to the claims raised in the PCRA petition, and denying the
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petition alleging trial counsel’s ineffectiveness without a
hearing, where [Appellant] not only filed objections to
counsel’s amended PCRA petition paragraph by paragraph,
but wrote directly to the court about counsel’s representation
and interpretations of the issues presented in the amended
PCRA petition, that did not contain everything needed to
challenge trial counsel’s representations. [Appellant]
informed the court that there was a conflict of interest, and
that PCRA counsel’s amended petition is so incomplete that
any sort of relief relative to those issues could be seriously
compromised, and none of the issues raised were preserved
by trial or PCRA counsel who are ineffective as a result,
specifically the insufficiency of the evidence claim that was
conflated and improper, not preserved by trial counsel.
[6.] The [PCRA] court abused its discretion in finding no merit
to the claims raised in the PCRA petition, and denying the
petition alleging trial counsel’s ineffectiveness without a
hearing, where trial counsel failed to object at sentencing to
the claims by [the Commonwealth], that while [Appellant]
was out on bail in this case, he was arrested for selling
firearms in the federal case which is false. [Appellant] was
charged with possession of firearms, not charged with or
convicted of anything else. That trial counsel failed to
properly preserve the IADA violations where no investigation
was had into these claims. That [Appellant] was given a state
detainer [] while on illegal IADA transfer from FCI
Cumberland from 2/19/16 to 4/13/16, with a serious medical
condition and without medical clearance, and without notice
of his rights or a transfer hearing under the IADA. That trial
counsel failed to object at sentencing to false information
used by [the Commonwealth] that [Appellant] was convicted
of [two] robberies which are [four] point offenses, and the
year of custody credit awarded has never been credited to
the sentence in any sentencing order by the court.
Appellant’s Rule 1925(b) Statement, 4/29/20, at 1-2 (some capitalization
omitted).
On May 29, 2020, Appellant’s counsel filed an application to withdraw.
As a result, this Court remanded the case to the PCRA court and instructed
the PCRA court to “conduct an on-the-record determination as to whether
Appellant’s waiver of counsel is knowing, intelligent and voluntary, pursuant
to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).” Order, 6/17/21, at
1.
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On November 13, 2020, the PCRA court entered the following order:
AND NOW, after a hearing held pursuant to
[Commonwealth v. Grazier], during which the [PCRA]
court conducted an on-the-record determination of
[Appellant’s] voluntariness of waiver of counsel, the court
found [Appellant] knowingly, intelligently and voluntarily
waived his right to counsel.
IT IS ORDERED AND DECREED, that [Appellant], having
made a lawful waiver of his right to counsel, is permitted to
proceed pro se in the above matter.
PCRA Court Order, 11/13/20, at 1.
Appellant raises one claim in his pro se brief:
Did the PCRA court commit reversible error when it denied
Appellant’s PCRA petition alleging ineffective assistance of
counsel on the basis that his trial attorney failed to seek a
plea offer prior to trial?
Appellant’s Brief at 3.
Appellant’s claim on appeal is waived, as Appellant did not raise the
issue in his Rule 1925(b) statement. Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not
included in the [concise statement of errors complained of on appeal] . . . are
waived”); Commonwealth v. Nobles, 941 A.2d 50, 52 (Pa. Super. 2008)
(“[i]t is of no moment that appellant was not ordered to file a 1925(b)
statement. Appellant filed his statement contemporaneously with his notice
of appeal. Accordingly, there was no need for the trial court to order him to
file a 1925(b) statement. If we were to find that because he was not ordered
to file a 1925(b) statement, he has not waived the issues he neglected to raise
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in it, we would, in effect, be allowing appellant to circumvent the requirements
of the Rule”) (quotations and citations omitted).
Moreover, even if Appellant had not waived his claim, the claim fails on
its merits.
“We review a ruling by the PCRA court to determine whether it is
supported by the record and is free of legal error. Our standard of review of
a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar,
154 A.3d 287, 296 (Pa. 2017) (citations omitted).
To be eligible for relief under the PCRA, the petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from “one or more” of the seven, specifically enumerated
circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily
enumerated circumstances is the “[i]neffective assistance of counsel which, in
the circumstances of the particular case, so undermined the truth-determining
process that no reliable adjudication of guilt or innocence could have taken
place.” 42 Pa.C.S.A. § 9543(a)(2)(ii).
Counsel is presumed to be effective and “the burden of demonstrating
ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d
1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead
and prove by a preponderance of the evidence that:
(1) his underlying claim is of arguable merit; (2) the
particular course of conduct pursued by counsel did not have
some reasonable basis designed to effectuate his interests;
and, (3) but for counsel’s ineffectiveness, there is a
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reasonable probability that the outcome of the challenged
proceedings would have been different.
Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has
explained:
A claim has arguable merit where the factual averments, if
accurate, could establish cause for relief. See
Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005)
(“if a petitioner raises allegations, which, even if accepted as
true, do not establish the underlying claim . . . , he or she
will have failed to establish the arguable merit prong related
to the claim”). Whether the facts rise to the level of arguable
merit is a legal determination.
The test for deciding whether counsel had a reasonable basis
for his action or inaction is whether no competent counsel
would have chosen that action or inaction, or, the alternative,
not chosen, offered a significantly greater potential chance of
success. Counsel’s decisions will be considered reasonable if
they effectuated his client's interests. We do not employ a
hindsight analysis in comparing trial counsel's actions with
other efforts he may have taken.
Prejudice is established if there is a reasonable probability
that, but for counsel’s errors, the result of the proceeding
would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.
Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some
quotations and citations omitted). “A failure to satisfy any prong of the test
for ineffectiveness will require rejection of the claim.” Id.Appellant claims that his trial counsel was ineffective because counsel
failed to seek a plea offer from the Commonwealth. Appellant’s Brief at 5.
According to Appellant:
Prior to trial in this case, Appellant, who was seriously ill and
required surgery, expressed to his trial attorney that he didn't
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believe he could physically sit through a trial, and that he had
a desire to accept responsibility for his conduct and accept
punishment for that conduct.
In keeping with Appellant's thoughts, he directed trial counsel
to approach the Commonwealth to seek a plea offer. On at
least two occasions, prior to the trial, Appellant would make
this request, to no avail.
Had trial counsel approached the Commonwealth for a plea
offer, there is a substantial likelihood that one would have
been extended . . . and that offer would have resulted in a
substantially lesser prison term than the one imposed after
[the] trial.
Appellant’s Brief at 4-5.
Appellant’s claim fails. Certainly, even assuming, arguendo, that
counsel was ineffective for failing to seek a plea offer, Appellant cannot
demonstrate that he was prejudiced by counsel’s inaction. See
Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005) (“we need not
determine whether the first two prongs of [the ineffective assistance of
counsel] standard are met if the record shows that [a]ppellant has not met
the prejudice prong”). At the outset, there is no evidence that the
Commonwealth was willing to extend a plea offer to Appellant. See
Commonwealth’s Brief at 9 (“[Appellant] has not shown that the
Commonwealth would have offered a plea bargain”); see also Weatherford
v. Bursey, 429 U.S. 545, 561 (1977) (“there is no constitutional right to plea
bargain; the prosecutor need not do so if he prefers to go to trial”). Further,
it is utter speculation for Appellant to declare that the hypothetical plea offer
“would have resulted in a substantially lesser prison term than the one
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imposed after [the] trial.” See Appellant’s Brief at 5. And, as our Supreme
Court has held: “[c]laims of ineffective assistance of counsel that are based
on speculation and conjecture do not adequately establish the degree of
prejudice necessary; namely, that there is a reasonable probability that, but
for counsel's errors, the outcome of the proceeding would have been
different.” Commonwealth v. Pursell, 724 A.2d 293 (Pa. 1999).
Therefore, even if Appellant had not waived his claim on appeal, the
claim fails on its merits.
Order affirmed. Jurisdiction relinquished.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/17/21
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