Com. v. Moses, J. ( 2015 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
JOSHUA MOSES,
Appellant No. 1268 EDA 2014
Appeal from the PCRA Order entered April 10, 2014,
in the Court of Common Pleas of Philadelphia County,
Criminal Division, at No(s): CP-51-CR-0013653-2008
BEFORE: BENDER, P.J.E., ALLEN, and MUNDY, JJ.
MEMORANDUM BY ALLEN, J.: FILED MARCH 23, 2015
Joshua Moses (“Appellant”) appeals pro se from the order denying his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”),
42 Pa.C.S.A. sections 9541-46. We affirm.
The pertinent facts and procedural history have been summarized as
follows:
In the late afternoon of October 12, 2008, Appellant
approached the elderly victim, Adrian Vasquez, on the
street in Philadelphia and demanded money from him.
Appellant showed the victim a gun that was hidden in
Appellant’s waistband. Appellant took $94.00 from the
victim’s pocket and fled. The victim and a friend got into a
vehicle and chased Appellant. The victim eventually exited
the car and chased Appellant on foot. After the victim
chased Appellant into a fenced-in lot, Appellant shot the
victim in the thigh. Police were summoned to the area and
eventually apprehended Appellant. The area was secured
overnight, and a gun was found by police the next day.
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Appellant was charged with aggravated assault,
robbery, and various other crimes. Following a non-jury
trial, Appellant was convicted of the crimes stated above.
On March 22, 2010, Appellant was sentenced to [an
aggregate term of thirteen and one-half to twenty-seven
years of imprisonment with ten years of consecutive
probation]. On March 30, 2010, Appellant filed a post-
sentence motion []. The trial court denied the motion on
July 16, 2010. On July 21, 2010, Appellant filed [a] timely
appeal.
Commonwealth v. Moses, 34 A.3d 220 (Pa. Super. 2011), unpublished
memorandum at 1-3 (footnote omitted).
Concluding that Appellant failed to properly preserve his challenge to
the discretionary aspects of his sentence, this Court, on September 12,
2011, affirmed Appellant’s judgment of sentence. Moses, supra. On May
1, 2012, our Supreme Court denied Appellant’s petition for allowance of
appeal. Commonwealth v. Moses, 42 A.3d 1059 (Pa. 2012).
On July 25, 2012, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, and on September 24, 2013, PCRA counsel filed a
“no-merit” letter and a petition to withdraw pursuant to Commonwealth v.
Turner, 544 A.2d 927 (Pa. 1988), and Commonwealth v. Finley, 550
A.2d 213 (Pa. Super. 1988) (en banc). By order entered December 20,
2013, the PCRA court denied Appellant’s PCRA petition. However, on
February 19, 2013, the PCRA court received a letter from Appellant in which
he stated that he never received the PCRA court’s Pa.R.Crim.P. 907 notice of
intent to dismiss Appellant’s petition. Therefore, the PCRA court vacated its
December 20, 2013 order dismissing Appellant’s PCRA petition, and sent
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Pa.R.Crim.P. 907 notice to Appellant. Appellant filed a response on March
17, 2014. By order entered April 10, 2014, the PCRA court dismissed
Appellant’s PCRA petition, and permitted PCRA counsel to withdraw. This
timely appeal followed. Both Appellant and the PCRA court have complied
with Pa.R.A.P. 1925.
Within his pro se brief, Appellant claims that the PCRA court erred in
denying him post-conviction relief for the following reasons: 1) both trial
counsel and PCRA counsel provided ineffective assistance; 2) the
Commonwealth violated Brady v. Maryland, 373 U.S. 83 (1963); 3) the
actions of the trial court during Appellant’s trial were an abuse of discretion;
and 4) the trial court abused its discretion in sentencing Appellant. See
Appellant’s Brief at 3. We consider each claim separately.
This Court’s standard of review regarding an order dismissing a
petition under the PCRA is whether the determination of the PCRA court is
supported by the evidence of record and is free of legal error.
Commonwealth v. Halley, 870 A.2d 795, 799 n.2 (Pa. 2005). The PCRA
court’s findings will not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v. Carr, 768 A.2d 1164,
1166 (Pa. Super. 2001). Moreover, a PCRA court may decline to hold a
hearing on the petition if the PCRA court determines that the petitioner’s
claim is patently frivolous and is without a trace of support in either the
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record or from other evidence. Commonwealth v. Jordan, 772 A.2d 1011,
1104 (Pa. Super. 2001).
To be eligible for post-conviction relief, a petitioner must plead and
prove by a preponderance of the evidence that his conviction or sentence
resulted from one or more of the enumerated errors or defects in 42
Pa.C.S.A. section 9543(a)(2), and that the issues he raises have not been
previously litigated. Commonwealth v. Koehler, 36 A.3d 121, 131 (Pa.
2012). An issue has been “previously litigated” if “the highest appellate
court in which the petitioner could have had review as a matter of right has
ruled on the merits of the issue, or if the issue has been raised and decided
in a proceeding collaterally attacking the conviction or sentence.” Koehler,
36 A.3d at 131-132; 42 Pa.C.S.A. § 9544(a)(2). If a claim has not been
previously litigated, the petitioner must prove that the issue was not waived.
An issue will be deemed waived under the PCRA “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 post[-]conviction proceeding.” Id. at 132; 42
Pa.C.S.A. § 9544(b).
Moreover, to the extent Appellant challenges the effectiveness of prior
counsel, we note the following: To obtain relief under the PCRA premised on
a claim that counsel was ineffective, a petitioner must establish by a
preponderance of the evidence that counsel's ineffectiveness so undermined
the truth-determining process that no reliable adjudication of guilt or
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innocence could have taken place. Commonwealth v. Johnson, 966 A.2d
523, 532 (Pa. 2009). “Generally, counsel’s performance is presumed to be
constitutionally adequate, and counsel will only be deemed ineffective upon
a sufficient showing by the petitioner.” Id. This requires the petitioner to
demonstrate that: (1) the underlying claim is of arguable merit; (2) counsel
had no reasonable strategic basis for his or her action or inaction; and (3)
petitioner was prejudiced by counsel's act or omission. Id. at 533. A
finding of “prejudice” requires the petitioner to show “that there is a
reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. Counsel cannot be
deemed ineffective for failing to pursue a meritless claim. Commonwealth
v. Loner, 836 A.2d 125, 132 (Pa. Super. 2003) (en banc), appeal denied,
852 A.2d 311 (Pa. 2004).
Appellant first claims that trial counsel was ineffective for failing to
investigate his claim “that the witnesses contacted [him], and lured [him] to
their location to attack [him].” Appellant’s Brief at 8. According to
Appellant, trial counsel should have “subpoena[ed] the phone records of his
grandmother in-law Hattie M. Lane to show that the witnesses gave false
testimonies when they were asked about their relationship with [him].” Id.Appellant further claims that counsel was ineffective because, had he
obtained these phone records, they would have allowed him to present a
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self-defense claim. Lastly, Appellant asserts that PCRA counsel was
ineffective for filing a “no-merit” letter regarding these claims.
The PCRA court found these claims to be meritless. With regard to the
phone records, the PCRA court reasoned:
[Appellant] is unable to show that the issue underlying
his claim of ineffective assistance [has] merit, and as such,
the claim must fail. In his PCRA petition, [Appellant]
maintains that the telephone records of his grandmother-
in-law should have been subpoenaed, as they would have
shown that Mr. Ortiz[, an associate of the victim,] had
called that number. This, [Appellant] claims, would prove
that Mr. Ortiz was lying when, during the preliminary
hearing, he indicated that he did not know [Appellant].
[Appellant] further asserts that the phone records would
prove that Mr. Ortiz contacted him in order to lure
[Appellant] out and attack him, proving his claim of self-
defense. [Appellant] also reasons that, when confronted
with the telephone records, several witnesses would be
forced to admit that they lied about their relationship with
him, thus impeaching their credibility and leading to a
different trial outcome. These claims are without merit.
As discussed in PCRA counsel’s Finley letter, the phone
records in question would not prove [Appellant’s] claims.
The records would not indicate who made or received the
calls, or provide the content of the conversations. As such,
counsel cannot be ineffective for failing to subpoena them.
***
[D]espite [Appellant’s] contentions that the records
would have proven his claim of self-defense and thus led
to a different outcome in his case, without the content of
the conversations or even proof of the parties involved in
the calls, there is no reason to believe that the mere
existence of records would have swayed the outcome. For
the foregoing reasons, [Appellant’s] claim of ineffective
assistance of counsel must fail.
PCRA Court Opinion, 9/17/14, at 9-10.
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Our review of the record supports the PCRA court’s conclusions.
Additionally, we note that claims of trial counsel’s ineffectiveness are not
self-proving and therefore cannot be raised in a vacuum. Commonwealth
v. Thomas, 783 A.2d 328, 333 (Pa. Super. 2001). “This Court will not
consider claims of ineffectiveness without some showing of a factual
predicate upon which counsel’s assistance may be evaluated.” Id. (citation
omitted). Appellant has not proffered any evidence that the phone records
at issue would actually prove their alleged worth to a claim of self-defense.
Thus, Appellant’s claims amount to no more than “bare assertions” that
provide no basis for a conclusion that counsel was ineffective. Id.1 Further,
because Appellant’s underlying claim of trial counsel’s ineffectiveness is
meritless, his claim of PCRA counsel’s ineffectiveness likewise fails. Loner,
supra.
Appellant’s related claim that trial counsel was ineffective for failing to
pursue a claim of self-defense, and PCRA counsel’s concomitant failure to
pursue the ineffectiveness claim, is also meritless. As explained by the
PCRA court:
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1
Appellant challenges several statements made by the PCRA court
concerning trial counsel’s apparent strategy regarding the phone records.
See Appellant’s Brief at 12-14. Appellant’s ineffectiveness claims fail
because he cannot establish prejudice. See Travaglia, supra. In addition,
we note that Mr. Ortiz did not testify at Appellant’s trial.
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[Appellant] is unable to show that his claim of self-
defense has merit, and, as such, his argument of
ineffective assistance of counsel must fail. The use of
force upon or toward another person is justifiable when the
actor believes that such force is immediately necessary for
the purpose of protecting himself against the use of
unlawful force by such other person on the present
occasion. 18 Pa.C.S.A. § 505. Historically, the law of self-
defense in Pennsylvania has permitted the use of force
provided that: (1) The actor reasonably believed that
force was necessary to protect himself; (2) The actor was
not able to retreat or avoid the danger prior to the use of
force; and, (3) The actor was free from fault in provoking
or continuing [the difficulty]. Commonwealth v. Harris,
[703 A.2d 441, 449, (Pa. 1997).
[Appellant] may have believed that some force was
necessary to protect himself, as the victim was chasing
him while wielding a metal club. However, it is clear from
the record that [Appellant] could have avoided danger
prior to the use of force, and that he was in no way free
from fault in provoking the victim. [Appellant] robbed Mr.
Vasquez, provoking the chase that ended when [Appellant]
shot Mr. Vasquez in the thigh in a Rite Aid parking lot,
while Mr. Vasquez was still several feet from [Appellant].
[Appellant] could have abandoned the stolen property,
which may have caused Mr. Vasquez to stop the chase.
There were numerous witnesses to the incident in
question, indicating that [Appellant] could have called out
for help, or entered the Rite Aid to avoid further
interactions with the victim. In addition, as this Court
noted at the time of sentencing, [Appellant] could have
used other, non-lethal means of subduing Mr. Vasquez,
who was considerably older than [Appellant], rather than
choosing to fire a gun in a public place. N.T., 9/30/2009,
at 23. Because [Appellant] provoked Mr. Vasquez and
because he chose to use deadly force rather than retreat
into the Rite Aid or seek assistance, his self-defense claim
is without merit, and counsel cannot have been ineffective
for failing to raise it at trial.
PCRA Court Opinion, 9/17/14, at 8-9.
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Once again, our review of the record supports the PCRA court’s
conclusions. Because Appellant provoked the encounter by robbing the
victim, could have retreated into a nearby store, and unreasonably
introduced the use of deadly force, Appellant’s claim of self-defense would
have been meritless. See e.g., Commonwealth v. Rivera, 983 A.2d 1211,
1221 (Pa. 2009) (concluding that the defendant was not justified in
responding to a police officer’s pursuit by employing deadly force). Thus,
trial counsel cannot be deemed ineffective for failing to pursue this defense
at trial. Loner, supra. Moreover, Appellant’s claim that PCRA counsel was
ineffective for not pursuing trial counsel’s ineffectiveness claim in an
amended post-conviction petition fails.
In his next two claims, Appellant asserts that the Commonwealth
committed a Brady violation when it failed to disclose an inconsistent
statement made by Mr. Ortiz prior to the preliminary hearing, and that the
trial court violated the Code of Judicial Conduct by leaving the bench during
closing arguments to receive a cellular phone call. See Appellant’s Brief at
at 9. Both of these claims are waived under the PCRA because Appellant
could have raised them on direct appeal. Koehler, supra. Thus, we need
not address them further.
In his final claim, Appellant argues that the trial court abused its
discretion in sentencing Appellant because “in sentencing [him], the trial
[court] factors accounts [sic] already taken into consideration in the
sentencing guidelines.” Appellant’s Brief at 9. To the extent Appellant
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challenges the discretionary aspects of his sentence, a direct challenge of
this type is non-cognizable under the PCRA. See generally,
Commonwealth v. Gonzalez, 608 A.2d 528 (Pa. Super. 1992).
Appellant also asserts that his sentence is illegal under the United
States Supreme Court’s recent decision in Alleyne v. United States, 133
S.Ct. 2151 (2013). However, “neither our Supreme Court nor the United
States Supreme Court have held that Alleyne is to be applied retroactively
to cases in which the judgment of sentence had become final.”
Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super. 2014).
Appellant’s judgment of sentence became final in 2012, prior to the Alleyne
decision. Additionally, we note that because Appellant’s sentencing involved
the application of the deadly weapon enhancement, Alleyne is inapplicable.
See Commonwealth v. Buterbaugh, 91 A.3d 1247, 1270 n.10 (Pa. Super.
2014) (en banc) (noting that application of a sentencing enhancement does
not violate the holding of Alleyne). Thus, Appellant’s reliance upon Alleyne
is inapt.
In sum, because Appellant’s claims are without merit or waived, we
affirm the PCRA court’s order denying post-conviction relief.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/23/2015
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