J-S52032-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA               :   IN THE SUPERIOR COURT OF
                                               :        PENNSYLVANIA
                                               :
                v.                             :
                                               :
                                               :
    RASUL MOORE                                :
                                               :
                       Appellant               :   No. 3211 EDA 2017

                Appeal from the PCRA Order September 25, 2017
    In the Court of Common Pleas of Philadelphia County Criminal Division at
                        No(s): CP-51-CR-0508041-2004


BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.

MEMORANDUM BY McLAUGHLIN, J.:                         Filed: December 13, 2019

        Rasul Moore appeals from the order dismissing as meritless his petition

filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. We conclude that he failed to plead and prove his counsel was

ineffective for failing to object to the reasonable doubt jury instruction. We

further conclude he has waived his remaining claims, as he did not raise them

before the PCRA court. We thus affirm.

        In March 2005, a jury convicted Moore of third-degree murder and

possession of an instrument of crime (“PIC”).1 The trial court sentenced Moore

to 20 to 40 years’ imprisonment for the murder conviction and two and a half

to five years’ imprisonment for the PIC conviction. Moore appealed, and this




____________________________________________


1   18 Pa.C.S.A. §§ 2502(c) and 907, respectively.
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Court affirmed. Moore filed a petition for allowance of appeal, which the

Pennsylvania Supreme Court denied on August 21, 2009.

      In April 2010, Moore filed a PCRA petition. The PCRA court appointed

counsel, who filed two amended petitions. In the amended petitions, Moore

alleged   trial   counsel   was    ineffective   for   failing   to   object   to   the

Commonwealth’s use of Ada Patterson’s police interview, in eliciting

information from a police form that contained a description of the shooter, for

failing to object and move for a mistrial when a witness stated he identified

Moore from a mugshot, for advising Moore his criminal record could be used

to impeach him if he testified, even though he had no crimen falsi offenses,

and for failing to appeal the discretionary aspects of Moore’s sentence. In

January 2015, the PCRA court dismissed Moore’s petition as meritless. Moore

did not file a notice of appeal.

      In August 2015, Moore filed a second PCRA petition, claiming he directed

PCRA counsel to file an appeal, but counsel failed to do so. In March 2016,

Moore filed a supplement to his PCRA petition, seeking relief under Alleyne

v. United States, 570 U.S. 99 (2013). The court appointed new counsel.

Counsel filed a motion for leave of court to supplement the amended PCRA

petition with a claim challenging the reasonable doubt jury instruction given

at trial, and counsel’s ineffectiveness for not objecting to the instruction.

Moore did not seek leave to raise any additional claims.

      In September 2017, the PCRA court granted Moore’s PCRA petition

alleging ineffectiveness of PCRA counsel for failing to file an appeal of the

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order dismissing his PCRA petition, finding he pled and proved a time-bar

exception, and denied Moore’s Alleyne claim:

          AND NOW, this 25 day of September, 2017, it is hereby
          ORDERED and DECREED that Petitioner’s Petition is
          GRANTED as follows:

          Petitioner’s claim requesting reinstatement of PCRA
          appellate rights is granted by agreement. Moore has met
          new fact exception plus 60 day requirement. Petitioner’s
          claim that his sentence is illegal under Commonwealth v.
          Alleyne is dismissed because Commonwealth v. Alleyne
          does not apply retroactively. Daniel Silverman, Esquire
          appointed for purpose of appeal. Notice of Appeal to the
          Superior Court from the Denial of his PCRA Petition must be
          filed within 30 days of the date of this Order.

Order, filed Sept. 25, 2017.2

       The order did not address the motion for leave to file a supplemental

petition arguing counsel was ineffective for failing to object to the reasonable

doubt jury instruction. The court ordered Moore to file a Rule 1925(b) concise

statement of matters complained of on appeal, and Moore filed one in October

2017. The PCRA court did not file a Rule 1925(a) opinion until April 2019.3 In

that opinion, the PCRA court states that it granted counsel’s motion for leave

____________________________________________


2 Moore’s PCRA petition explained that he learned on July 9, 2015, via letter,
that his counsel had not filed an appeal. Moore attached the letter to the
petition, as well as correspondence from him to his lawyer requesting an
appeal and seeking status updates as to his case. He filed the petition seeking
reinstatement of his appeal rights in August 2015.

3 In August 2018, this Court informed the trial court that the original record
in this case had not yet been filed with this Court. In February 2019, we
granted Moore’s application to compel, and ordered that the trial court
transmit the record and 1925(a) opinion within 30 days. This court received
the original record in March 2019 and the 1925(a) opinion in April 2019.

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to supplement the petition, and addresses the claim that counsel was

ineffective for failing to object to the reasonable doubt instruction, and two

claims from the 2010 PCRA petition that Moore had raised in the 1925(b)

statement. Trial Court Opinion, filed Apr. 18, 2019, at 4, 6-8. The court found

the claims meritless. Moore filed a Notice of Appeal.

      Moore raises the following claims on appeal:

         1. Regarding the underlying claim that trial counsel was
         ineffective for failing to object to the trial court’s instruction
         on reasonable doubt:

            (a) did the PCRA court err in failing to address this claim
            and/or

            (b) was PCRA counsel ineffective for failing to raise this
            claim?

         2. Was PCRA counsel ineffective for failing to raise the claim
         that trial counsel was ineffective for failing to object to the
         trial court’s instruction to the jury that “[a]s you go through
         this process, you will very likely conclude that one of the
         witnesses testified falsely and did so intentionally”, as this
         invaded the province of the jury, directing it to disbelieve
         the lone defense witness?

         3. Was PCRA counsel ineffective for failing to raise the claim
         that trial counsel was ineffective for failing to object to the
         trial court’s concerted efforts to coerce a guilty verdict from
         this jury?

         4. Was PCRA counsel ineffective for failing to raise the claim
         that direct appeal counsel was ineffective for failing to raise
         the claim that the trial court erred in precluding the defense
         alibi witness from testifying that the reason she recalled
         Moore’s whereabouts on the day and at the time in question
         (as opposed to any other day) was because she had heard
         later that same day that the decedent had been shot and
         killed?




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          5. Was PCRA counsel ineffective for failing to raise the claim
          that trial counsel was ineffective for failing to object to the
          prosecutor’s closing statement in which he argued that
          critical witness Detective Richard Harris would not lie
          because to do so would risk “everything”, including his
          “badge” and “pension”, as these statements were not
          supported by any evidence in the record, constitute
          improper vouching for the credibility of the witness, and
          invite the jury to speculate on the adverse consequences to
          the police should it acquit the defendant?

Moore’s Br. at 3-4 (footnote omitted).

       We first address Moore’s claim that his counsel was ineffective for failing

to object to the trial court’s reasonable doubt jury instruction,4 which included

an example concerning whether jury members would pursue an experimental

treatment for a loved one with a life-threatening condition:

          The Commonwealth bears the burden; and if the evidence
          that has been presented in the entire case fails to meet the
          Commonwealth’s burden, then your verdict must be not
          guilty.

          On the other hand, if the evidence does prove beyond a
          reasonable doubt that Rasul Moore is guilty of the crimes
          charged, then your verdict must be guilty.

          Now, although the Commonwealth bears the burden of
          proving that this citizen is guilty, that does not mean that
          the Commonwealth must prove its case beyond all doubt.
          The Commonwealth is not required to prove its case to a
          mathematical certainty nor must it demonstrate the
          complete impossibility of innocence. A reasonable doubt is
          a doubt that would cause a reasonably careful and sensible
          person to pause, to hesitate, or to refrain from acting upon
          a matter of the highest importance to their own affairs or to
          their own interests. A reasonable doubt must fairly arise out

____________________________________________


4Because the trial court states in its 1925(a) opinion that it granted leave to
supplement the petition, and addressed the issue, we do not find remand for
entry of an order granting the petition necessary.

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        of the evidence that was presented or out of the lack of
        evidence presented with respect to some element of the
        crimes charged.

                                     ...

        What I want you to focus on is . . . reasonable doubt, what
        it means when a reasonably careful and sensible person
        pauses or hesitates or refrains from acting. Take, for
        example, if someone you loved dearly -- your child, your
        spouse, your significant other -- someone truly precious to
        you was told by their physician that they had a life-
        threatening condition, condition was terminal, and that the
        only protocol that existed for treatment of that condition
        was an experimental surgery.

        Now, if you're like me, you very likely are going to seek a
        second opinion. You’re probably going to get a third opinion.
        You’re probably going to go on the Internet and research
        what is this condition your loved one has.

        You might call up, asking them, “What have you heard?
        Does this work?” Obviously, what you’re looking for is a
        guarantee that the surgery will cure your loved one; but at
        some point the question will be called. There is no
        guarantee. It’s an experimental procedure. If you choose to
        go forward with this procedure for your loved one, it may
        not necessarily be because you have eliminated all doubt. It
        will be because you have eliminated all reasonable doubt. If
        you have reasonable doubt, you won’t have the procedure;
        but if all reasonable doubt is gone, you will go forward.

        A reasonable doubt must be a real doubt. It may not be one
        that is imagined or manufactured in order to avoid carrying
        out an unpleasant responsibility.

        You may not find this citizen guilty based upon a mere
        suspicion of guilt. The Commonwealth bears the burden of
        proving that this citizen is guilty beyond a reasonable doubt.
        If the Commonwealth has met that burden, then the
        defendant is no longer presumed to be innocent; and you
        must find him guilty. On the other hand, if the
        Commonwealth has not met its burden, you must find him
        not guilty.

N.T., 3/23/2005, at 136-39.

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       Our standard of review from the denial of a PCRA petition “is limited to

examining whether the PCRA court’s determination is supported by the

evidence of record and whether it is free of legal error.” Commonwealth v.

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

       To prevail on an ineffective assistance of counsel claim, the petitioner

must establish: “(1) his underlying claim is of arguable merit; (2) counsel had

no reasonable basis for his action or inaction; and (3) the petitioner suffered

actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311

(Pa. 2014). “[C]ounsel is presumed to be effective and the burden of

demonstrating ineffectiveness rests on appellant.” Ousley, 21 A.3d at 1244

(quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)).

“The failure to prove any one of the three [ineffectiveness] prongs results in

the failure of petitioner's claim.” Id. (quoting Rivera, 10 A.3d at 1279).

       Moore relies on Brooks v. Gilmore, 2017 WL 3475475 (E.D.Pa. Aug.

11, 2017), a case from the United States District Court for the Eastern District

of Pennsylvania that found an instruction nearly identical to the instruction at

issue to be unconstitutional.5 We are “not bound by the decisions of federal

courts inferior to the U.S. Supreme Court.” In re Stevenson, 40 A.3d 1212,

1216 (Pa. 2012). Further, there is no published decision from this Court or
____________________________________________


5  In this appeal, the Commonwealth does not argue that the instruction is
constitutional. Although the Commonwealth initially filed an appeal in Brooks,
it subsequently withdrew the appeal by agreement of the parties. Brooks v.
Superintendent Greene SCI, 2018 WL 1304895 (3d Cir. Feb. 28, 2018).
The United States Court of Appeal for the Third Circuit therefore has not
decided the issue.

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from the Pennsylvania Supreme Court deciding whether the instruction at

issue is constitutional.

      Moore concedes that the instruction included a correct statement of the

reasonable doubt standard. Moore’s Br. at 17. However, he argues that the

medical illustration “inserted a requirement that any doubt worthy of acquittal

must be so serious and grave that it would rise to the level causing a mother

to reject surgery for her dying child when surgery was the only protocol that

could save the child.” Id. He claims this example “relieved the Commonwealth

of its high burden to prove guilt beyond a reasonable doubt.” Id. at 18. He

further argues that by using the term “moving forward,” the instruction was

error because the instruction should inform a jury to vote for acquittal if the

jury would pause or hesitate before acting. Id. at 23.

      The PCRA court concluded that the underlying claim—that the court

issued an unconstitutional reasonable doubt instruction—lacked merit. Trial

Court Op., Apr. 18, 2019, at 6-7. We agree.

      We review “the jury charge as a whole to determine if it is fair and

complete.” Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa.Super.

2008) (quoting Commonwealth v. Einhorn, 911 A.2d 960, 975 (Pa.Super.

2006)). “[A]n imperfect instruction does not constitute reversible error where

the charge, taken as a whole, fairly and accurately conveys the essential

meaning.” Commonwealth v. Uderra, 862 A.2d 74, 92 (Pa. 2004). “A trial

court has wide discretion in phrasing its jury instructions, and can choose its

own words as long as the law is clearly, adequately, and accurately presented

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to the jury for its consideration.” Jones, 954 A.2d at 1198 (quoting Einhorn,

911 A.2d at 975).

      A jury instruction violates due process if there is a reasonable likelihood

that the jury interpreted the instruction to allow a conviction based on a

degree of proof below the reasonable doubt standard. Victor v. Nebraska,

511 U.S. 1, 5 (1994). The United States Supreme Court has found that

defining reasonable doubt as a “grave uncertainty” or “actual substantial

doubt” suggests a higher degree of doubt than required for acquittal under

the reasonable doubt standard. Cage v. Louisiana, 498 U.S. 39, 41 (1991).

It concluded a reasonable jury could interpret such terms, when considered

“with reference to ‘moral certainty,’ rather than evidentiary certainty, . . . to

allow a finding of guilt based on a degree of proof below that required by the

Due Process Clause.” Id. The Supreme Court clarified that, when determining

whether an instruction is unconstitutional, “the proper inquiry is not whether

the instruction ‘could have’ been applied in an unconstitutional manner, but

whether there is a reasonable likelihood that the jury did so apply it.” Victor,

511 U.S at 6 (citing Estelle v. McGuire, 502 U.S. 62, 72, and n. 4, (1991)).

      Here, when viewed as a whole, the charge accurately informed the jury

that it could find Moore guilty only if it found that the Commonwealth proved

the elements of the offense beyond a reasonable doubt. The trial court

accurately defined reasonable doubt as:

         A reasonable doubt is a doubt that would cause a reasonably
         careful and sensible person to pause, to hesitate, or to
         refrain from acting upon a matter of the highest importance

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         to their own affairs or to their own interests. A reasonable
         doubt must fairly arise out of the evidence that was
         presented or out of the lack of evidence presented with
         respect to some element of the crimes charged.

N.T., 3/23/2005, at 136-37.

      The court’s analogy was at best ambiguous. It asked the jurors to

consider a decision between undergoing an experimental surgery, with

unknown efficacy and unknown risk, recommended by a single doctor, and

leaving a loved one with a “life threatening” condition. Moore contends the

instruction required the jury to choose between an experimental procedure

and death, such that the jury could have understood the degree of doubt the

Commonwealth must overcome to secure a conviction as being lower than the

law requires. That is one possibility. On the other hand, the jury could have

viewed the “experimental” nature of the procedure as risking a decrease in

the loved one’s quality of life, with little to no possibility of saving the loved

one’s life, such that one might be unwilling to “go forward.”

      It is thus not clear that the illustration lowered the degree of doubt, as

Moore contends, rather than increasing it. When we view the ambiguous

medical illustration in combination with the trial court’s accurate definition of

the reasonable doubt standard, we do not believe there is a “reasonable

likelihood” that the jury applied the reasonable doubt standard in an

unconstitutional manner. See also Commonwealth v. Nam, 2019 WL

3946049, at *3 (Pa.Super. filed Aug. 21, 2019) (concluding an almost identical

set of instructions “when read in context of the entire instruction . . . states

the law accurately”).

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      We therefore conclude that the PCRA court did not err in finding the

underlying claim regarding the reasonable doubt instruction lacked merit, and

therefore that Moore failed to establish his counsel was ineffective for failing

to object to the instruction. Because we find the underlying issue lacks merit,

we do not address the remaining ineffectiveness prongs.

      Moore has waived his remaining issues on appeal, as he failed to raise

them in his PCRA petitions, or in his supplement to his PCRA petition.

Commonwealth v. Reid, 99 A.3d 470, 494 (Pa. 2014) (concluding claim

waived where not raised in PCRA petition and raised for first time in

supplemental 1925(b) statement).

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/13/2019




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