J-S18019-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 Super. 2011), unpublished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:


____________________________________________


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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