J-S74021-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

JAMES R. MOORE A/K/A WILLIAM
MOORE

                            Appellant                 No. 2795 EDA 2015


                  Appeal from the Order Entered July 17, 2015
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-0009849-2008


BEFORE: OTT, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY OTT, J.:                            FILED DECEMBER 16, 2016

        James R. Moore, a/k/a William Moore, appeals, pro se, from the order

entered July 17, 2015,1 in the Philadelphia County Court of Common Pleas,

dismissing his first petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541-9546. Moore seeks relief from the judgment

of sentence of an aggregate term of seven and one-half to 15 years’

imprisonment imposed on March 16, 2010, following his jury conviction of

persons not to possess firearms and possessing an instrument of crime
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*
    Former Justice specially assigned to the Superior Court.
1
  We note Moore purported to appeal from an order of the PCRA court
entered on September 2, 2015. See Notice of Appeal, 9/3/2015. Our
review of the docket reveals no order was entered by the court on that date.
Rather, Moore is challenging the order entered July 17, 2015, dismissing his
PCRA petition.
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(“PIC”).2 On appeal, Moore contends the PCRA court erred in (1) declining

to find his firearms sentence unconstitutional under Alleyne v. United

States, 133 S.Ct. 2151 (U.S. 2013), and (2) rejecting his argument that his

firearms conviction constitutes an ex post facto application of the law. For

the reasons below, we affirm.

        The relevant facts and procedural history underlying Moore’s PCRA

petition were summarized by the Pennsylvania Supreme Court on direct

appeal as follows:

                On April 13, 2008, at approximately 2:30 a.m., [Moore]
        became involved in an altercation with Gerald Stewart at a
        neighborhood “speakeasy” located at 5915 West Girard Avenue
        in Philadelphia. Shortly thereafter, a gunfight erupted between
        [Moore] and various other patrons, during which [Moore],
        Stewart, and Vincent Dennis were shot, and Reginald Mailey was
        killed.

              [Moore] was arrested in connection with the incident and
        charged with murder, attempted murder, aggravated assault,
        simple assault, reckless endangerment, three violations of the
        Uniform Firearms Act (“VUFA”), and PIC.          The aggravated
        assault, simple assault, and reckless endangerment charges, as
        well as two of the VUFA charges, were ultimately nolle prossed,
        and, on January 11, 2010, the case proceeded to a jury trial on
        the murder, attempted murder, and PIC charges, as well as
        [Moore’s] remaining VUFA charge of persons not to possess
        firearms.   The trial was bifurcated, with the jury hearing
        evidence related to the VUFA charge after it issued its verdict on
        the other charges.

            During the first portion of [Moore’s] trial, the
        Commonwealth presented evidence supporting its theory that
____________________________________________


2
    See 18 Pa.C.S. §§ 6105 and 907, respectively.




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     [Moore] initiated the shooting. Specifically, the Commonwealth’s
     evidence indicated that, after his initial argument with Stewart,
     [Moore] left the speakeasy, retrieved a handgun from his car,
     and returned to the establishment, where he began firing and
     shot Stewart, Dennis, and Mailey.              According to the
     Commonwealth, after [Moore] began shooting, Stewart
     discovered a gun on the floor and returned fire, shooting [Moore]
     in the left thigh and right knee. The Commonwealth claimed
     that [Moore] subsequently left the speakeasy while still
     possessing his gun, drove away, and, minutes later, was stopped
     by police, who recovered the gun from the front passenger seat
     of his car.    [Moore], by contrast, testified at trial that he
     retrieved the gun from inside the speakeasy after the fight
     began, and that he returned fire in self-defense.

           The jury acquitted [Moore] of the murder and attempted
     murder charges, but convicted him of PIC. In the second phase
     of the trial, after hearing evidence pertaining to [Moore’s] VUFA
     charge, the jury convicted [Moore] of persons not to possess a
     firearm. He received consecutive sentences of 2½ to 5 years
     incarceration for his PIC conviction and 5 to 10 years
     imprisonment for his persons not to possess firearms conviction.
     [Moore] filed a post-sentence motion for reconsideration of
     sentence, which was denied by operation of law, and he
     appealed his judgment of sentence to the Superior Court,
     asserting the evidence was insufficient to sustain his PIC and
     persons not to possess firearms convictions because of the jury’s
     acquittal on the charges of murder and attempted murder.

           In a unanimous published opinion, the Superior Court
     affirmed [Moore’s] VUFA conviction, but reversed his PIC
     conviction and remanded for re-sentencing, concluding that,
     “since the jury acquitted [Moore] of committing any crime with
     the firearm that he possessed, his conviction for PIC is infirm.”
     [Commonwealth v.] Moore, 49 A.3d [896,] 898 [(Pa. Super.
     2012)].

Commonwealth v. Moore, 103 A.3d 1240, 1241–1243 (Pa. 2014)

(footnotes omitted).




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       The Pennsylvania Supreme Court granted allocatur review, and, on

October 30, 2014, reversed the decision of the Superior Court. See id. The

Court held:

       [A]lthough [Moore’s] murder and attempted murder acquittals
       may be logically inconsistent with [his] PIC conviction, in light of
       our enduring acceptance of inconsistent verdicts in Pennsylvania,
       we conclude that the acquittals are not grounds for reversal of
       [Moore’s] PIC conviction, and, thus, we find the Superior Court
       erred in holding otherwise.

Id. at 1250.

       While his appeal was still pending before the Supreme Court, Moore

filed a pro se PCRA petition on August 5, 2014, in which he claimed he was

not prohibited from possessing a firearm under 18 Pa.C.S. § 6105.

Specifically, he asserted the court used a 1978 burglary conviction as his

triggering conviction, when, in fact, that burglary charge was “overturn[ed]

to a theft,” which is not a triggering offense under Section 6105. 3 Motion for

Post Conviction Relief, 8/5/2014, at 3. Over the ensuing five months, Moore

filed several pro se documents supplementing his petition.          See Docket

Entry, dated 8/19/2014, 11/20/2014, 12/16/2014, and 1/5/2015. Counsel

was appointed, and on March 19, 2015, filed a motion to withdraw and



____________________________________________


3
  Section 6105 prohibits persons convicted of certain enumerated offenses
from possessing a firearm. See 18 Pa.C.S. § 6105(a). Subsection (b) of the
statute lists the triggering offenses, and does not include the crime of theft.
See 18 Pa.C.S. § 6105(b).




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Turner/Finley4 “no merit” letter.              Sometime thereafter, the trial court

issued notice of its intent to dismiss Moore’s PCRA petition without first

conducting an evidentiary hearing pursuant to Pa.R.Crim.P. 907.5 On June

9, 2015, Moore filed a response to the Rule 907 notice claiming, for the first

time, (1) he was sentenced to an unconstitutional mandatory minimum

sentence under Alleyne, and (2) his firearms conviction constituted an ex

post facto application of the law. See Petitioner’s Response to the Court’s

Pa.R.Crim.P. 907 Notice, 6/9/2015, at 2-5.             On July 17, 2015, the PCRA

court entered an order dismissing Moore’s petition, and granting counsel

permission to withdraw. This appeal followed.6

       Before we may address the substantive issues in Moore’s brief, we

must first consider the Commonwealth’s request that we quash this appeal

as untimely filed. See Commonwealth’s Brief at 9-10. In the present case,

the order denying Moore’s PCRA petition was filed on July 17, 2015. Moore
____________________________________________


4
  Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
5
  Although the certified record does not contain a copy of the court’s Rule
907 notice, a May 15, 2015, docket listing indicates “907 Notice to be sent”
and, as noted infra, Moore filed a response to the court’s Rule 907 notice.
See Docket Entry, 5/15/2015; Petitioner’s Response to the Court’s
Pa.R.Crim.P. 907 Notice, 6/9/2015.
6
  On November 19, 2015, the PCRA court directed Moore to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Moore complied with the court’s order, and filed a concise statement on
December 9, 2015.




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did not file a notice of appeal until September 3, 2015.        Therefore, the

appeal is facially untimely.       See Pa.R.A.P. 903 (notice of appeal must be

filed within 30 days after entry of order on appeal).

       Nonetheless, Pennsylvania Rule of Appellate Procedure 108 provides

the date of the entry of an appealable order “shall be the day the clerk of the

court … mails or delivers copies of the order to the parties.”       Pa.R.A.P.

108(a)(1). Here, neither the order itself nor the docket entry for July 17,

2015, reflects the date the order denying Moore’s PCRA petition was sent to

him. See Pa.R.Crim.P. 114(B)(1) (requiring copies of order be “promptly”

served on “each party’s attorney, or the party if unrepresented”); (C)(2)

(requiring clerk of court to enter on the docket the date of service of an

order). Accordingly, we decline to quash Moore’s appeal.

       In his first issue, Moore asserts his five to 10-year sentence, imposed

on his conviction of persons not to possess firearms, is illegal. 7       See

Moore’s Brief at 10. Specifically, he claims the court imposed a mandatory

minimum sentence pursuant to 42 Pa.C.S. § 9712,8 without submitting the

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7
  We note that while Moore did not include this issue in his PCRA petition,
this Court has held that an Alleyne challenge is a non-waivable challenge to
the legality of a sentence. See Newman, supra, 99 A.3d at 90. But see
Commonwealth v. Barnes, 122 A.3d 1034 (Pa. 2015) (granting petition
for allowance of appeal to consider, inter alia, whether an Alleyne claim
raises a challenge to the legality of sentencing).
8
  Section 9712 provides for a five-year mandatory minimum sentence when,
inter alia, a defendant visibly possesses a firearm while committing an
(Footnote Continued Next Page)


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facts triggering the mandatory minimum to the jury, a procedure that has

been declared illegal under Alleyne.9 See Moore’s Brief at 10-11.

      The glaring problem with Moore’s argument is that the trial court did

not impose a mandatory minimum sentence on Moore’s firearms conviction.

A review of the sentencing transcript reveals Moore’s prior record score was

that of a repeat felony offender (“REFEL”) and the offense gravity score for

the firearms charge was a 10.              See N.T., 3/12/2010, at 5.   The court

commented that, as a result of “[Moore’s] prior record score actually the

maximum would be above the statutory mandatory[.]” Id. Therefore, the

court imposed a statutory maximum sentence of five to 10 years

imprisonment on Moore’s firearms conviction. See id. at 25. Because the


                       _______________________
(Footnote Continued)

enumerated crime of violence. See 42 Pa.C.S. § 9712(a).             See also 42
Pa.C.S. § 9714(g) (defining “crime of violence”).
9
  In Alleyne, the United States Supreme Court held “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne, supra, 133 S.Ct.
at 2155. In interpreting that decision, the courts of this Commonwealth
have determined that most of our mandatory minimum sentencing statutes,
are unconstitutional because the language of those statutes “permits the
trial court, as opposed to the jury, to increase a defendant’s minimum
sentence based upon a preponderance of the evidence” standard.
Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. Super. 2014) (en banc)
(invalidating 42 Pa.C.S. § 9712.1), appeal denied, 121 A.3d 496 (Pa. 2015).
Further, our courts have held that the unconstitutional provisions of the
mandatory minimum statutes are not severable from the statute as a whole.
Commonwealth v. Hopkins, 117 A.3d 247, 262 (Pa. 2015); Newman,
supra, 99 A.3d at 101.




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court did not impose a Section 9712 mandatory minimum sentence, Moore is

entitled to no relief on his first claim.

       Next, Moore argues his conviction of persons not to possess firearms

constitutes an ex post facto application of the law. See Moore’s Brief at 12.

Specifically, he asserts the triggering conviction, which made him ineligible

to possess a firearm under Section 6105, occurred in 1972, prior to the

effective date of Section 6105.10 See id. at 12. See also 1972, Dec. 6, P.L.

1482, No. 334, § 1, effective June 6, 1973.        Moore states:    “To apply

[Section] 6105 for a conviction that occurred prior to its effective date would

have a classic EX-Post-Facto effect [as] it would aggravate the 1972 crime,

or make it greater than it was when committed.”          Moore’s Brief at 12

(capitalization in original).

       However, Moore did not raise this ex post facto challenge in his pro se

PCRA petition, or any amendment thereto. See Motion for Post Conviction

Relief, 8/5/2014, at 3. It is axiomatic that a petitioner must plead and prove

his entitlement to relief under the PCRA.        See 42 Pa.C.S. § 9543(a).

Consequently, any issue not included in a PCRA petition, is waived for

appellate review.      See Commonwealth v. Wharton, 811 A.2d 978, 987


____________________________________________


10
   We note that Moore’s PCRA attorney attached to his no-merit letter a
criminal docket sheet which indicates Moore was convicted on May 9, 1973,
of attempted murder, aggravated robbery, and related charges for a
September 24, 1972, offense. See “No Merit” Letter, 3/19/2015, Exhibit 1,
Criminal Docket No. CP-51-CR-1103091-1972.



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(Pa. 2002) (holding PCRA “claims cannot be raised for the first time on

appeal to this Court.”). Therefore, Moore’s ex post facto argument is waived

on appeal.11     See Commonwealth v. Birdsong, 24 A.3d 319, 348 (Pa.

2011) (finding ex post facto issue that was not raised in PCRA petition

waived).

       Nevertheless, even if we were to consider Moore’s ex post facto claim,

we would conclude he is entitled to no relief. The ex post facto clause, in

both the United States and Pennsylvania Constitutions, “prohibits Congress

and the states from passing laws which impose punishment for an act that

was not punishable at the time it was committed or imposes additional

punishment than was previously prescribed.” Commonwealth v. Carson,

913 A.2d 220, 276 (Pa. 2006), cert. denied, 552 U.S. 954 (2007).         Here,

Moore argues his conviction of Section 6105, based upon the 1973 triggering

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11
   Moreover, we note that the fact Moore did raise this issue, for the first
time, in his response to the PCRA court’s Rule 907 notice is of no moment.
“Where the petitioner does not seek leave to amend his petition after
counsel has filed a Turner/Finley no-merit letter, the PCRA court is under
no obligation to address new issues.” Commonwealth v. Rigg, 84 A.3d
1080, 1085 (Pa. Super. 2014). Here, Moore never sought leave to amend
his PCRA petition, but rather, simply raised new claims in his Rule 907
response. This Court has observed that Rule 907 “does not treat a response
to its notice of dismissal as either an amended petition or a serial petition.”
Commonwealth v. Rykard, 55 A.3d 1177, 1187 (Pa. Super. 2012), appeal
denied, 64 A.3d 631 (Pa. 2013). Therefore, his belated inclusion of this
claim in the Rule 907 response does not preserve it for our review.




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conviction, operates to impose a greater punishment for the 1973 conviction

than was prescribed at the time he committed that crime. See Moore’s Brief

at 12.

         However, Moore fails to acknowledge that under the Penal Code of

1939, the predecessor to our present Crimes Code, a person convicted of a

crime of violence was similarly prohibited from possessing a firearm.     See

Commonwealth v. Layton, 307 A.2d 843, 844 (Pa. 1973), citing 18 P.S. §

4628(d) (“… No person who has been convicted in this Commonwealth or

elsewhere of a crime of violence shall own a firearm, or have one in his

possession or under his control”). Therefore, his conviction of persons not to

possess firearms, based upon a conviction that occurred before the most

recent enactment of the statute, did not constitute an ex post facto

application of the law.      See U.S. v. Mitchell, 209 F.3d 319, 322-323 (4th

Cir. 2000) (finding no ex post facto violation when prosecution under Gun

Control Act for possession of firearm was triggered by domestic violence

conviction which occurred prior to enactment of Act), cert. denied, 531 U.S.

849 (2000).12



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12
   We note that while federal decisions are not binding on this Court, it is
well-established that those decisions “may serve as persuasive authority in
resolving analogous cases.” Commonwealth v. Haskins, 60 A.3d 538, 548
n. 9 (Pa.Super. 2012) (citation omitted), appeal denied, 78 A.3d 1090 (Pa.
2013).




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      Because we find Moore is entitled to no relief under the PCRA, we

affirm the order denying his petition.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 12/16/2016




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