Com. v. Moorer, E., Jr. ( 2016 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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.
ELIJAH MOORER, JR.
Appellant No. 742 MDA 2015
Appeal from the Judgment of Sentence March 31, 2015
In the Court of Common Pleas of Centre County
Criminal Division at No(s): CP-14-CR-0000532-2013
BEFORE: PANELLA, J., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY LAZARUS, J.: FILED FEBRUARY 10, 2016
Elijah Moorer, Jr. appeals from the judgment of sentence imposed by
the Court of Common Pleas of Centre County following his guilty pleas to
thirty-seven counts involving delivery of controlled substances, possession of
firearms and related offenses. The charges arose out of Moorer’s possession
and delivery of drugs between March 2011 and November 2012. Moorer’s
counsel also seeks to withdraw pursuant to the dictates of Anders v.
California, 386 U.S. 738 (1967), Commonwealth v. Santiago, 978 A.2d
349 (Pa. 2009), and Commonwealth v. McClendon, 434 A.2d 1185 (Pa.
1981). Upon review, we grant counsel’s petition to withdraw and affirm
Moorer’s judgment of sentence.
On March 13, 2014, the trial court imposed 19 consecutive sentences
totaling 36 to 72 years’ incarceration for delivery of controlled substances,
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35 P.S. § 780-113(a)(30). The court imposed concurrent sentences for the
remaining convictions, including: Count 20 (possession with intent to deliver
(PWID)) - 5 to 10 years’ incarceration plus a $30,000.00 fine; Count 21
(PWID) - 3 to 6 years’ incarceration plus a $10,000.00 fine; Count 23
(conspiracy, 18 Pa.C.S. § 903) – 5 to 10 years’ incarceration; and Count 25
(persons not to possess firearms, 18 Pa.C.S. § 6105(A)(1)) – 5 to 10 years’
incarceration.
Moorer’s counsel filed an untimely post-sentence motion, which the
court nevertheless considered and denied at the conclusion of argument on
April 11, 2014. Moorer’s counsel then filed an appeal, which this Court
quashed as untimely on July 11, 2014.
On September 5, 2014, Moorer filed a pro se petition pursuant to the
Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. The court
appointed counsel, Lance T. Marshall, Esquire, who filed an amended petition
on November 14, 2014, seeking reinstatement of Moorer’s appeal rights
nunc pro tunc. On February 2, 2015, the court granted the motion, but
directed Moorer to file a post-sentence motion within ten days. On February
11, 2015, counsel filed a motion to modify sentence in which he averred that
Moorer’s concurrent sentences for Counts 20, 21 and 25 were illegal because
they were imposed pursuant to mandatory minimum provisions that have
been determined to be unconstitutional. See Alleyne v. United States,
133 S.Ct. 2151 (2013); Commonwealth v. Cardwell, 105 A.3d 748 (Pa.
Super. 2014); Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014).
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He further averred that the court erred by listing the offense gravity score
for his criminal conspiracy conviction as 10 while it should have been 6,
which would make the standard range 21 to 27 months rather than 5 to 10
years.
By order dated March 27, 2015, the trial court granted the motion and
vacated Moorer’s sentences on Counts 20, 21, 23 and 25. At a hearing on
March 31, 2015, the court imposed sentences of incarceration of 18 to 36
months on Counts 20 and 21, and 4 to 8 years on Counts 23 to 25. Because
the sentences were ordered to be served concurrently with the consecutive
sentences imposed on Counts 1 through 19, the aggregate sentence
remained the same as the original sentence imposed on March 13, 2014.
Moorer filed a notice of appeal on April 24, 2015. On May 18, 2015,
Attorney Marshall filed: (1) a Pa.R.A.P. Rule 1925(b) statement of errors
complained of on appeal containing six issues that Moorer wished to raise;
(2) a motion to withdraw as counsel; and (3) a Turner/Finley1 letter. In
the letter, counsel explained his belief “that this is a post conviction
proceeding, as he was appointed after [Moorer] filed a pro se PCRA Petition.”
Turner/Finley Letter, 5/18/15, at [6].
In response, the trial court issued an order on June 8, 2015, stating its
“determin[ation] that Defendant has filed a direct appeal of his sentence.”
____________________________________________
1
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988).
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Order, 6/8/15, at [1]. Attorney Marshall then filed a praecipe to withdraw
the motion to withdraw as counsel and what he designated as an amended
statement of errors complained of on appeal. It was, in fact, a statement of
intent to file an Anders brief pursuant to Pa.R.A.P. 1925(c)(4). The court
filed its Rule 1925(a) opinion on June 17, 2015.
In his Anders brief, Attorney Marshall raises the following issues
verbatim that Moorer wishes to raise on appeal:
1. Did the trial court err in allowing the Commonwealth to
amend the information charging the Defendant with
possession with intent to distribute less than 1 gram of heroin
on 17 counts where [Moorer] did not have knowledge of the
alleged criminal conduct prior to the court proceedings and
[Moorer] was prejudiced by the amendment? [sic]2
2. Did the trial court err by violating the Due Process Clause, by
allowing the Commonwealth a pass on the sufficiency of
information in the indictment as well as the superseding
indictment violating [Moorer’s] United States Constitutional
Rights, 5th, 6th and 14th Amendments as well as the
Pennsylvania Constitutional Right Article 1, Section 9? [sic]
3. Did the trial court err by allowing prosecution misconduct
when the Commonwealth repeatedly alluding to evidence that
the prosecution knew did not exist and deprived the
Defendant of a fair trial court proceedings? [sic].
4. Did the trial court err by not dismissing all PWID counts for
lack of adequate notice of what the Defendant must defend
against especially every element of the crime charged which a
grand jury indictment must set forth for any resulting
conviction to stand? [sic]
____________________________________________
2
All references to “[sic]” in the statement of questions presented are in the
original.
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5. Did the Commonwealth violate Defendant’s constitutional
rights when District Attorney Stacy Parks Miller is under
investigation for prosecutorial misconduct in this investigation
for forging documents involved in this case who also signed
all phone intercepts applications and the original indictment
information as well brining the whole investigation in to
question and an abuse of process? [sic]
6. Did the trial court violate Defendant’s constitutional right by
sentencing him to possession and delivery charges, where
there’s no lab reports, no controlled buys, or exploratory
evidence as well as no grand jury transcripts of presentment
for 17 counts on the indictment information, then imposing an
excessive sentence of 36 to 72 years for non-violent crimes?
[sic]
Appellant’s Brief, at 4-5.
“When faced with a purported Anders brief, this Court may not review
the merits of the underlying issues without first passing on the request to
withdraw.” Commonwealth v. Rojas, 874 A.2d 638, 639 (Pa. Super.
2005). Furthermore, counsel must comply with certain mandates when
seeking to withdraw pursuant to Anders, Santiago and McClendon. These
mandates are not overly burdensome and have been summarized as follows:
Direct appeal counsel seeking to withdraw under Anders must
file a petition averring that, after a conscientious examination of
the record, counsel finds the appeal to be wholly frivolous.
Counsel must also file an Anders brief setting forth issues that
might arguably support the appeal along with any other issues
necessary for the effective appellate presentation thereof.
Anders counsel must also provide a copy of the Anders petition
and brief to the appellant, advising the appellant of the right to
retain new counsel, proceed pro se or raise any additional points
worthy of this Court’s attention.
If counsel does not fulfill the aforesaid technical requirements of
Anders, this Court will deny the petition to withdraw and
remand the case with appropriate instructions (e.g., directing
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counsel either to comply with Anders or file an advocate’s brief
on Appellant’s behalf).
Commonwealth v. Woods, 939 A.2d 896, 898 (Pa. Super. 2007) (citations
omitted).
Here, counsel has provided the facts and procedural history of the
case, and avers that, after a thorough review of the record, he finds the
appeal to be wholly frivolous, and states his reasons for this conclusion.
Counsel provided a copy of the petition and Anders brief to Moorer, along
with a letter explaining Moorer’s right to raise any claims directly with the
court pro se or to retain private counsel. Accordingly, we find counsel has
met the requirements of Anders, Santiago and McClendon.
On September 28, 2015, Moorer filed with this Court a “Pro Se
Response to Counsel[’s] Petition to Withdraw and [sic] Anders/ McClendon
Brief Filed by Counsel.” In the response, Moorer argues that his guilty plea
was invalid and he raises several claims of ineffective assistance of counsel.
With respect to the issues raised in the Anders brief, Moorer first
argues that the trial court erred by allowing the Commonwealth to amend
the information. However, our independent review of the record confirms
counsel’s position that the Commonwealth did not request an amendment of
the information. Accordingly, Moorer is not entitled to relief on this claim.
The second and fourth issues in the Anders brief are related, and
therefore we address them together. Moorer asserts that his due process
rights were violated because the information did not list the quantities of
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drugs that he possessed and/or delivered, thereby depriving him of
adequate notice of the charges against him.
Pa.R.Crim.P. 560 sets forth the contents of an information:
(B) The information shall be signed by the attorney for the
Commonwealth and shall be valid and sufficient in the law if it
contains:
(1) a caption showing that the prosecution is carried on in the
name of and by the authority of the Commonwealth of
Pennsylvania;
(2) the name of the defendant, or if the defendant is unknown,
a description of the defendant;
(3) the date when the offense is alleged to have been
committed if the precise date is known, and the day of the week
if it is an essential element of the offense charged, provided that
if the precise date is not known or if the offense is a continuing
one, an allegation that it was committed on or about any date
within the period fixed by the statute of limitations shall be
sufficient;
(4) the county where the offense is alleged to have been
committed;
(5) a plain and concise statement of the essential elements of
the offense substantially the same as or cognate to the offense
alleged in the complaint; and
(6) a concluding statement that “all of which is against the Act
of Assembly and the peace and dignity of the Commonwealth.”
Pa.R.Crim.P. 560(B).
The information in this case includes the date and place of each crime
Moorer is alleged to have committed along with its essential elements.
Contrary to Moorer’s position, there is no requirement that the weight of a
drug allegedly possessed or delivered be included in the information.
Therefore, no relief is due.
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The third issue raised in the Anders brief is prosecutorial misconduct
based on repeated allusions to evidence that the Commonwealth knew did
not exist. Moorer does not identify the facts that the Commonwealth knew
to be false nor does he identify where, in the record, the allusions to the
evidence appear. Our independent review of the transcripts filed in this case
confirms counsel’s assertion that he could “find no repeatedly alluded to fact
that the prosecution knew did not exist.” Anders Brief, at 16.
Moorer next asserts that his constitutional rights were violated by the
prosecutorial misconduct of Centre County District Attorney Stacy Parks
Miller. The case against Moorer was prosecuted by the Office of Attorney
General, and not by the District Attorney of Centre County. Our review of
the record indicates no involvement by the District Attorney in this matter,
and accordingly, there is no merit to this issue.
The sixth issue raised in Moorer’s Anders brief presents two separate
issues: a challenge to the sufficiency of the evidence and a challenge to his
sentence.
With respect to the sufficiency of the evidence, “[i]t is well established
that any issue relating to sufficiency of the evidence is waived by entry of a
guilty plea and is not subject to attack in a post conviction proceeding.”
Commonwealth v. Rounsley, 717 A.2d 537, 539 (Pa. Super. 1998).
Therefore, Moorer is entitled to no relief on this claim.
Moorer next raises a challenge to the discretionary aspects of his
sentence. When the discretionary aspects of a sentence are questioned, an
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appeal is not guaranteed as of right. Commonwealth v. Moore, 617 A.2d
8, 11 (Pa. Super. 1992).
An appellant challenging the discretionary aspects of his
sentence must invoke this Court’s jurisdiction by satisfying a
four-part test: (1) whether appellant has filed a timely notice of
appeal, see Pa.R.A.P. 902 and 903; (2) whether the issue was
properly preserved at sentencing or in a motion to reconsider
and modify sentence, see Pa.R.Crim.P. [720]; (3) whether
appellant’s brief has a fatal defect, Pa.R.A.P. 2119(f); and (4)
whether there is a substantial question that the sentence
appealed from is not appropriate under the Sentencing Code, 42
Pa.C.S. § 9781(b).
Commonwealth v. Allen, 24 A.3d 1058, 1064 (Pa. Super. 2011) (citation
omitted).
Moorer filed a timely notice of appeal. However, he did not preserve
his challenge to the discretionary aspects of his sentence in his post
sentence motion or at his resentencing. “Absent such efforts, an objection
to a discretionary aspect of sentence is waived.” Commonwealth v.
Griffin, 65 A.3d 932, 936 (Pa. Super. 2013) (citation omitted). Accordingly,
we are precluded from considering this claim.
In his pro se response to counsel’s petition to withdraw and the
Anders brief, Moorer challenges the voluntariness of his guilty plea.
However, Moorer is precluded from raising this issue on appeal because he
did not object during the plea or file a motion to withdraw within ten days of
sentencing. See Commonwealth v. Tareila, 895 A.2d 1266, 1270 n.3 (Pa.
Super. 2006) (To preserve issue related to guilty plea, appellant must either
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object at sentencing colloquy or otherwise raise issue at sentencing hearing
or through post-sentence motion).
Additionally, Moorer raises several claims of ineffective assistance of
counsel. In Commonwealth v. Holmes, 79 A.3d 562, 563 (Pa. 2013), our
Supreme Court reaffirmed the holding in Commonwealth v. Grant, 813
A.2d 716 (Pa. 2002) that “claims of ineffective assistance of counsel are to
be deferred to PCRA review . . . and such claims should not be reviewed
upon direct appeal.” Holmes, supra at 576. Accordingly, the claims of
ineffective assistance of counsel are not properly before us.
Judgment of sentence affirmed. Petition to withdraw as counsel
granted.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 2/10/2016
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