J-S24026-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

    COMMONWEALTH OF PENNSYLVANIA           :   IN THE SUPERIOR COURT OF
                                           :        PENNSYLVANIA
                                           :
               v.                          :
                                           :
                                           :
    JAMES LEE MOODY,                       :
                                           :
                     Appellant             :   No. 837 EDA 2018

             Appeal from the PCRA Order Entered February 16, 2018
     In the Court of Common Pleas of Montgomery County Criminal Division
                       at No(s): CP-46-CR-0007262-2013


BEFORE:     LAZARUS, J., McLAUGHLIN, J., and STEVENS*, P.J.E.

MEMORANDUM BY McLAUGHLIN, J.:                       FILED AUGUST 09, 2019

       James Lee Moody appeals from the denial of his request for relief under

the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. He claims

that the court should have granted relief based on his claims of ineffective

assistance of counsel. We affirm.

       In 2014, the trial court found Moody guilty of theft offenses related to

his employment as a bookkeeper for Victory Christian Fellowship (“the

church”). The trial court sentenced Moody to six to 27 years’ incarceration.

We affirmed the judgment of sentence. See Commonwealth v. Moody, No.

2202 EDA 2015, 2016 WL 5864028 (Pa.Super. filed August 18, 2016)

(unpublished memorandum). Moody filed the instant timely pro se PCRA

petition on November 1, 2016. Following a Grazier hearing, Moody continued




____________________________________

*    Former Justice specially assigned to the Superior Court.
J-S24026-19



pro se. See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998). In his

petition he raised the following ineffective assistance of counsel claims:

      (a) Trial counsel was ineffective for not investigating,
      interviewing, depose the testimonies, subpoena and compel the
      appearance of [Moody’s] fact and character witnesses for trial.

      (b) Trial counsel was ineffective for not presenting material
      evidence and exhibits that was agreed upon as the primary theory
      for [Moody’s] defense.

      (c) Trial counsel was ineffective for allowing Brady violation, and
      did not ask for a continuance to prepare for an adequate defense.

      (d) Trial counsel was ineffective by denying [Moody] the right to
      testify on his own behalf at trial.

      (e) Trial counsel was ineffective for not “Objecting” to the
      Commonwealth’s [A]DA (Latzer) prosecutorial misconduct- for his
      prejudicial comment during his closing argument.

      (f) Trial counsel was ineffective for no obtaining exculpatory and
      material evidence (Discovery) from the Commonwealth as agreed.

      (g) Trial counsel was ineffective for not challenging jurisdiction
      and abuse of process by the Commonwealth.

      (h) Trial was ineffective in his representation by breach in loyalty,
      conflict of interest and not effectuating [Moody’s] interest.

Moody’s PCRA Petition, filed 11/15/16, at 3.

      Moody then filed a motion to supplement his petition, which the PCRA

court granted. The supplement did not raise new claims, however, and instead

offered an additional witness, his wife, whom he wished to call to testify at an

evidentiary hearing, as well as other, additional evidence in support of his

original claims. See Supplement to Amended PCRA Petition, filed 3/23/17. The

PCRA court denied claims c, e, f, and g above, without a hearing. See Rule

                                      -2-
J-S24026-19



907 Notice, filed 9/13/17. However, it held an evidentiary hearing as to the

remaining claims.

      At the evidentiary hearing, Moody, his wife, and a member of the church

testified. The Commonwealth responded with testimony from Charles D.

Mandracchia, Esq., the attorney for the church. The PCRA court denied

Moody’s petition and this timely appeal followed.

      Moody raises the following issues before this Court:

      I.     Did the PCRA Court err in finding [Moody] not credible,
             based only on an alleged prior crimen falsi [conviction], and
             the nature of the charges challenged in the PCRA itself?

      II.    Did the PCRA Court apply the wrong standard to [Moody’s]
             claim that his Trial Counsel was ineffective due to a “Conflict
             of Interest”?

      III.   Did the PCRA Court err in not granting a new trial where
             [Moody] was denied his statutory and constitutional right to
             testify on his own behalf?

      IV.    Did the PCRA Court err in dismissing [Moody’s] meritable
             [sic] claims (c, e, f and g)?

      V.     Did the PCRA Court err in dismissing [Moody’s] meritable
             [sic] claims (a, b, d and h) after the commencement of the
             Evidentiary Hearing?

Moody’s Br. at 2.

      “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.” Commonwealth v. Mason, 130

A.3d 601, 617 (Pa. 2015) (citation omitted). When the court denies a petition

without holding an evidentiary hearing, “such a decision is within the


                                      -3-
J-S24026-19



discretion of the PCRA court and will not be overturned absent an abuse of

discretion.” Id. We are bound by the PCRA court’s credibility determinations,

when the record supports them, and we review its legal conclusions de novo.

Id.

      For purposes of an ineffectiveness claim, “counsel is presumed to have

rendered effective assistance.” Commonwealth v. Lesko, 15 A.3d 345, 374

(Pa. 2011). A petitioner may overcome this presumption by pleading and

proving by a preponderance of the evidence that:

      (1)   The underlying legal claim has arguable merit;

      (2)   Counsel had no reasonable basis for [the] action or inaction;
            and

      (3)   Appellant suffered prejudice because of counsel’s action or
            inaction.

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

Commonwealth v. Presley, 193 A.3d 436, 442 (Pa.Super. 2018)). Prejudice

in this context means “there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceedings would have been

different.” Commonwealth v. Spotz, 84 A.3d 294, 312 (Pa. 2014) (quoting

Commonwealth v. King, 57 A.3d 607, 613 (Pa. 2012)). A reasonable

probability is one “sufficient to undermine confidence in the outcome of the

proceeding.” Id. (quoting Commonwealth v. Ali, 10 A.3d 282, 291 (Pa.

2010)).




                                     -4-
J-S24026-19



      In his first issue, Moody claims that the trial court erred in making a

credibility determination based on his criminal record, “when at no point

during the PCRA hearing, nor at trial was any prior criminal record admitted

as crimen falsi.” Moody’s Br. at 16. In its Pa.R.A.P. 1925(a) opinion, the court

stated that it did not find Moody credible and noted that Moody was found

guilty of crimen falsi crimes both in the instant case and in a prior case:

      To the extent [Moody] testified about the beneficial testimony
      each would have offered had they been called at trial, this court
      did not find defendant credible.3

            3 [Moody] stands convicted of crimen falsi offenses in this
            case and has a prior crimen falsi conviction, which was
            introduced at trial.

PCRA Court Opinion (“PCO”), filed 5/16/18 at 7. The Commonwealth counters

that Moody waived this argument because “[Moody’s] prior thievery was

admitted at trial without objection[.]” Commonwealth’s Br. at 14 (citing N.T.,

10/08/14, at 145-46 and 401-02).

      Our review of the record confirms that the Commonwealth moved a copy

of the certified record of Moody’s prior conviction for theft-related offenses

into evidence at trial without any objection from defense counsel. See N.T.,

Trial at 145-46; Commonwealth’s Exhibit 11. Moody therefore waived this

issue. In any event, the judge who presided over Moody’s trial also presided

over the PCRA hearing, and therefore was well aware of Moody’s crimen falsi

history. The judge was within his discretion to consider this information when

making his credibility determination. No relief is due.


                                     -5-
J-S24026-19


       Next, Moody claims that the court erroneously applied the Strickland

v. Washington, 466 U.S. 668, 687 (1984), standard rather than the U.S. v.

Cronic, 466 U.S. 648, 659 (1984), standard for his claims of ineffective

assistance of counsel. He argues that the Cronic standard applies because his

trial counsel allegedly had a conflict of interest. See Moody’s Br. at 23-24.

       In Strickland, the United States Supreme Court held that in order to

sustain a claim of ineffective assistance of counsel, a petitioner must show not

only “that counsel’s performance was deficient,” but also that counsel’s

deficient performance prejudiced the petitioner. The Court determined that a

petitioner establishes prejudice if the petitioner shows that the error

undermines confidence in the verdict. Strickland, 466 U.S. at 687; see also

Commonwealth v. Pierce, 527 A.2d 973, 976 (Pa. 1987).1

       In Cronic, the Court recognized an exception to Strickland, holding

that certain circumstances are so likely to produce an unreliable verdict that

prejudice is presumed. Mickens v. Taylor, 535 U.S. 162, 166 (2002).

Pursuant to Cronic, prejudice is presumed in three factual scenarios: “where

there was an actual or constructive denial of counsel, the state interfered with

counsel’s assistance, or counsel had an actual conflict of interest.”



____________________________________________


1 The Court in Pierce held that in order to sustain a claim of ineffective
assistance of counsel, a petitioner must plead and prove: (1) the claim has
arguable merit; (2) there was not a reasonable basis for counsel’s actions;
and (3) that petitioner was prejudiced by counsel’s actions. Pierce, 527 A.2d
at 975-76.

                                           -6-
J-S24026-19


Commonwealth v. Reaves, 923 A.2d 1119, 1128 (Pa. 2007). An actual

conflict of interest exists where “during the course of representation, the

interests of appellant – and the interests of another client towards whom

counsel bears obligations – diverge with respect to a material factual or legal

issue or to a course of action.” Commonwealth v. Tedford, 960 A.2d 1, 54

(Pa. 2008) (quoting In Interest of Saladin, 518 A.2d 1258, 1261 (Pa.Super.

1986)).

      Here, at the evidentiary hearing, Moody contended that his trial counsel

had a conflict of interest because counsel once worked in the same firm as the

church’s attorney, Mr. Mandracchia. Notably, he argued that he had

established Strickland prejudice. He did not argue that the court should

presume prejudice under Cronic.

      [Moody]: . . . [Trial counsel] – it seemed like – he didn’t tell that
      – before I engaged [trial counsel’s] legal services that he
      previously worked for Mr. Mandracchia’s firm.

      If I knew that, if I knew that connection, I wouldn’t have hired
      him.

      Then coming to find out that Mr. Mandracchia was representing
      defense’s primary witness.

                                      ***

      [Moody]: I understand, Your Honor. And I just think that it had to
      be – maybe he owed the Mandracchia firm a favor.

      [Commonwealth]: Objection, Your Honor. Speculation.

      The Court: Overruled. Go ahead.




                                      -7-
J-S24026-19


      [Moody]: It just seemed like, you know, he – we had these mock
      trial and these conversations and these promises. And then when
      trial came, nothing materialized. He didn’t represent me according
      to the Sixth Amendment.

      I believe the issues as was presented to you met all – the
      two prongs of Strickland versus Washington and the three
      prongs according to Commonwealth v. Pierce.

      They were arguable merit. There was no reasonable basis
      for him not to do or to do what he did. And it prejudiced me
      of a fair trial in this hall of justice, Your Honor.

N.T., PCRA Hearing, at 16-17 (emphasis added).

      The PCRA court concluded that Moody failed to “present any credible

evidence at the PCRA hearing to support” his claim that his trial counsel had

a conflict of interest. TCO at 11. It concluded that “[Moody] presented nothing

but his own speculative testimony that trial counsel breached a duty of loyalty

or had a conflict of interest.” Id. The PCRA court did not find Moody to be a

credible witness and also noted that he failed to call his trial counsel as a

witness thereby failing to sustain his burden to prove that a conflict of interest

existed. See id.

      To begin, Moody waived his argument that the trial court erroneously

applied Strickland instead of Cronic by failing to argue in the trial court that

the Cronic presumption should apply. See Pa.R.A.P. 302. Moreover, Cronic

does not apply here. Moody’s argument that his trial counsel used to work in

the same firm as Mr. Mandracchia was not enough to establish an actual

conflict of interest. Additionally, Mr. Mandracchia testified that he fired counsel

from his firm “maybe 2010 --, 2010, 2012,” i.e., two to four years before

                                       -8-
J-S24026-19


Moody went to trial. PCRA Hearing at 74. Thus, even if Moody had not waived

the issue, the Cronic standard is inapplicable here.

      Next, Moody claims that the PCRA court should have a granted his claim

of ineffective assistance of counsel because he maintains that he was denied

his right to testify at trial. This claim is meritless.

      A claim of ineffective assistance of counsel regarding a defendant’s right

to testify at trial requires that the petitioner show “either that (1) counsel

interfered with his client’s freedom to testify, or (2) counsel gave specific

advice so unreasonable as to vitiate a knowing and intelligent decision by the

client not to testify in his own behalf.” Commonwealth v. O’Bidos, 849 A.2d

243, 250 (Pa.Super. 2004). “Counsel is not ineffective where counsel’s

decision to not call the defendant was reasonable.” Commonwealth v.

Breisch, 719 A.2d 354, 355 (Pa.Super. 1998).

      At the evidentiary hearing, Moody testified that he told his trial counsel

that he wanted to testify but counsel advised against it because it would open

the door to his crimen falsi record. However, Moody also testified, “I didn’t

press the issue. I didn’t want to disrupt your court by being argumentative.”

N.T., PCRA Hearing at 14. The relevant portion of his testimony is provided

below:

      [Moody]: . . . I told him – at the point of recess, I said, Mr. Fogle
      [trial counsel], I need to testify on my own behalf, you are leaving
      me here with no defense.

      He basically stated to me that if I do that I leave myself open for
      my prior record.

                                        -9-
J-S24026-19



      I said, well, I thought that you – we agreed that you would file a
      motion in limine to limit certain things that the DA could say.

      I told him I had filed previously a motion to suppress my prior
      record prior to ten years in accordance with Federal Rule 404(b).

      He said he would. Never did. And he says, well the DA filed a
      motion for res gestae.

      Am I saying that right?

      The Court: Yes, you are.

      [Moody]: Well, he wouldn’t have to – the judge would – if you
      would have argued something, the judge could have made an
      amenable decision on if it had probable value—or not.

      And basically what the DA put the motion in for was different –
      the action was of the same transaction. So that would have been
      the argument.

      He said he did. Did not.

      Okay. So I said, listen, I need to testify. So he basically gave a
      false reason not to testify. Because I’m thinking that he had
      already filed a motion in limine. And he did not.

      And I still wanted to testify. And he said that wasn’t a good idea.
      I was frustrated. I didn’t press the issue. I didn’t want to disrupt
      your court by being argumentative.

      So we didn’t go no further with that.

      All right.

Id. at 13-14.

      The record supports the PCRA court’s conclusion that Moody “failed to

sustain his burden of proof on this issue.” PCO at 9. Counsel’s advice to Moody

was reasonable because Moody’s criminal record contained crimen falsi


                                     - 10 -
J-S24026-19


convictions that the Commonwealth could have used to impeach his

testimony. See Pa.R.E. 609(a). Additionally, because Moody did not call trial

counsel as a witness, the only testimony the court heard regarding this issue

was from Moody, whom it did not find credible. See PCO at 9 (“This court, as

stated above, did not find [Moody] to be a credible witness at the hearing”).

This claim warrants no relief. Breisch, 719 A.2d at 354-55.

        Moody also argues that the PCRA court erroneously denied certain

claims (paragraphs c, e, f, and g) without first holding an evidentiary hearing.

These claims asserted counsel’s ineffectiveness in failing to raise an alleged

Brady2 violation, not objecting to the Commonwealth’s closing argument,

failing to obtain exculpatory evidence, and not challenging the court’s

jurisdiction.

        There is no absolute right to an evidentiary hearing on a PCRA petition.

Commonwealth v. Wah, 42 A.3d 335, 338 (Pa.Super. 2012). “[I]f the PCRA

court can determine from the record that no genuine issues of material fact

exist, then a hearing is not necessary.” Commonwealth v Springer, 961

A.2d 1262, 1264 (Pa.Super. 2008) (citation omitted). In the context of

ineffectiveness claims, “if the record reflects that the underlying issue is of no

arguable merit or no prejudice resulted, no evidentiary hearing is required.”

Commonwealth v. Baumhammers, 92 A.3d 708, 726-27 (Pa. 2014).



____________________________________________


2   Brady v. Maryland, 373 U.S. 83 (1963).

                                          - 11 -
J-S24026-19


      Here, the trial court rejected these claims, except for the jurisdictional

challenge, on the ground that this Court rejected the underlying claims on

direct appeal. Moody does not address this conclusion on appeal, and instead

flatly maintains that the claims were “meritable,” without explanation.

Moody’s Br. at 37. This issue is therefore waived for lack of development. See

Commonwealth v. Beshore, 916 A.2d 1128, 1140 (Pa.Super. 2007) (en

banc) (“‘The failure to develop an adequate argument in an appellate brief

may [] result in waiver of the claim’ under Pa.R.A.P. 2119”) (quoting

Commonwealth v. Gonzalez, 608 A.2d 528, 531 (Pa.Super. 1992)).

      As to Moody’s claim regarding the trial court’s jurisdiction, his PCRA

petition claimed that “trial counsel rendered ineffective assistance when he

failed to challenge jurisdiction (criminal court), and Commonwealth’s abuse of

process in using a civil matter (express contract) to charge [Moody] in criminal

court.” PCRA Petition at 29. This claim is frivolous.

      Moody was charged with crimes such as identity theft, receiving stolen

property, and dealing in proceeds of unlawful activities, all of which are

offenses under the Crimes Code. See 18 Pa.C.S.A. §§ 4120(a); 3925(a); and

5111(a)(1), respectively. Therefore, the case was properly within the

jurisdiction of the Court of Common Pleas. See Commonwealth v. McGarry,

172 A.3d 60, 66 (Pa.Super. 2017) (“All courts of common pleas have

statewide subject matter jurisdiction in cases arising under the Crimes Code

[pursuant to 42 Pa.C.S.[A.] § 931]”) (citation omitted). The PCRA court did


                                     - 12 -
J-S24026-19


not   err   in   dismissing   this   claim   without   an   evidentiary   hearing.

Baumhammers, 92 A.3d at 726-27.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 8/9/19




                                       - 13 -
