Com. v. Moser, L. ( 2016 )

J-S51043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
LARRY JAN MOSER, JR.
Appellant No. 3744 EDA 2015
Appeal from the PCRA Order November 25, 2015
in the Court of Common Pleas of Carbon County
Criminal Division at Nos.: CP-13-CR-0000181-2014
CP-13-CR-0000673-2013
CP-13-CR-0000970-2012
BEFORE: GANTMAN, P.J., LAZARUS, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED SEPTEMBER 01, 2016
Appellant, Larry Jan Moser, Jr., appeals from the order denying his
first petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546, without a hearing. We affirm.
The background of this case is a procedural quagmire due chiefly to
Appellant’s myriad pro se filings. We recite only the pertinent background
that we glean from the PCRA court’s opinion and our review of the certified
record. In fact, although the appeal in this matter nominally relates to cases
at three separate docket numbers, in reality Appellant’s issues involve only
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*
Retired Senior Judge assigned to the Superior Court.
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case number 673-2013. Therefore, we will confine our recitation of the facts
to that case.
On July 11, 2013, Appellant entered into a counseled stipulation with
the Commonwealth in which he agreed to plead guilty to simple assault in
the second degree (“negligently causes bodily injury to another with a
deadly weapon”).1 In exchange, the Commonwealth dismissed the
remaining charges, which included, most significantly, aggravated assault.
(See Stipulation, 7/11/13). On August 15, 2013, with the assistance of
court-appointed counsel, Appellant signed a guilty plea and a written plea
colloquy, and pleaded guilty in open court pursuant to the stipulated terms. 2
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1
18 Pa.C.S.A. § 2701(a)(2).
2
Specifically, the Commonwealth recited the following facts to which
Appellant agreed:
[O]n April 26 of 2013, Chief [Neal A.] Ebbert of the Lehighton
Police Department was dispatched to the area of the Lehigh
Trestle for a fight involving several people. He was met by
Michael Taschler who was bleeding from the shoulder. Taschler
stated that [Appellant] had stabbed him in the shoulder.
Witnesses on scene corroborated that story. The knife was
recovered in Weissport. [Appellant] identified the knife as his
and as being used in the assault.
(N.T. Guilty Plea Hearing, 8/15/13, at 7; see id. at 8; see also PCRA Court
Opinion, 2/08/16, at 12 n.14 (identifying the Lehigh Trestle as a railroad
bridge that crosses the Lehigh River)).
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(See Guilty Plea, 8/15/13; Guilty Plea Colloquy, 8/15/13, at unnumbered
page 6; N.T. Guilty Plea Hearing, 8/15/13, at 4, 8).
On November 14, 2013, the trial court scheduled sentencing for
December 17, 2013. However, Appellant fled to Chatham County, Georgia,
where he remained until August 2014, when he was arrested pursuant to a
bench warrant issued by the trial court. Appellant was immediately
extradited to Carbon County, Pennsylvania.
On October 28, 2014, the trial court held a sentencing hearing.
Pursuant to Appellant’s request that he receive a state sentence of
incarceration rather than county because he did not like the food in the
county correctional facility, the court honored his request and sentenced him
to a term of not less than three nor more than six months’ incarceration in a
state facility.3 (See N.T. Sentencing, 10/28/14, at 25-26). Appellant did
not file a timely direct appeal.4
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3
This sentence was to be served consecutively to the sentence of not less
than nine nor more than eighteen months’ incarceration imposed in case
number 970-2012, in which Appellant had pleaded guilty to unsworn
falsification to authorities. This resulted in a total aggregate sentence of not
less than twelve nor more than twenty-four months’ incarceration in a state
facility.
4
On April 9, 2015, Appellant filed an untimely direct appeal pro se. This
Court returned the notice of appeal to Appellant’s trial counsel on October 9,
2015. (See Letter, 10/09/15 (returning Appellant’s notice of appeal
pursuant to Commonwealth v. Jette, 23 A.3d 1032 (Pa. 2011))). The
Court quashed the appeal on October 23, 2015.
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In January 2015, Appellant filed, inter alia, a timely pro se PCRA
petition, and an untimely post-sentence motion for modification of sentence.
On January 27, 2015, the court appointed PCRA counsel. On February 12,
2015, Appellant filed an untimely post-sentence motion to dismiss the
indictment due to a lack of signature. Appointed counsel filed a
Turner/Finley5 no-merit letter on March 27, 2015. On March 30, 2015, the
court denied the two post-sentence motions after a hearing and issued a
Rule 907 notice of its intent to dismiss Appellant’s PCRA petition without a
hearing. See Pa.R.Crim.P. 907(1).
Appellant filed an objection to counsel’s petition to withdraw on April
16, 2015 and, on May 29, 2015, he filed a pro se amended PCRA petition
without court permission. On August 3, 2015, the PCRA court granted
counsel leave to withdraw. On November 25, 2015, the court denied
Appellant’s petition. On December 7, 2015, Appellant filed a timely notice of
appeal. On December 8, 2015, the PCRA court ordered Appellant to file a
concise statement of errors complained of on appeal. See Pa.R.A.P.
1925(b). On December 10, 2015, Appellant filed a pro se Rule 1925(b)
statement in which he raised thirty issues. On December 11, 2015,
Appellant filed an application for appointment of appellate PCRA counsel,
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5
Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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which the court granted on December 28, 2015. After receiving PCRA court
approval, appellate counsel filed an amended Rule 1925(b) statement on
February 3, 2016, raising only four issues. On February 8, 2016, the court
filed an opinion in which it concluded all thirty of Appellant’s original alleged
errors were waived, but, as a precaution, distilled the thirty claims into
twelve issues that it then reviewed. (See PCRA Ct. Op., at 10-11); see also
Pa.R.A.P. 1925(a).
Appellant raises four questions for this Court’s review.
1. Whether the trial court had jurisdiction to hear the case
indexed to CR-673-2013 when the alleged incident occurred
on federal property[?]
2. Whether [Appellant’s] plea was valid when the criminal
information was amended without his knowledge resulting in
him pleading guilty to the offense in CR-673-2013[?]
3. Whether [Appellant’s] [plea] . . . and PCRA counsel . . . were
ineffective[?]
4. Whether the [PCRA] court erred in denying [Appellant’s] PCRA
[petition] without a hearing when he timely requested the
right to a hearing [to] present subpoenaed witnesses[?]
(Appellant’s Brief, at 3).
This Court analyzes PCRA appeals in the light most
favorable to the prevailing party at the PCRA level. Our review
is limited to the findings of the PCRA court and the evidence of
record and we do not disturb a PCRA court’s ruling if it is
supported by evidence of record and is free of legal error.
Similarly, we grant great deference to the factual findings of the
PCRA court and will not disturb those findings unless they have
no support in the record. However, we afford no such deference
to its legal conclusions. Where the petitioner raises questions of
law, our standard of review is de novo and our scope of review is
plenary. . . .
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Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citations,
quotation marks, and brackets omitted).
In his first issue, Appellant challenges the legality of his sentence by
arguing that the trial court did not have jurisdiction over his case because
his offense occurred on the Lehigh Trestle, which he alleges is federally-
owned land. (See Appellant’s Brief, at 8-9). Appellant’s claim does not
merit relief.6
In making his argument, Appellant relies on the language contained in
74 P.S. § 1, Jurisdiction of state ceded to the United States, in certain cases.
(See Appellant’s Brief, at 8). “The interpretation of a statute is a pure
question of law, and therefore our standard of review is de novo and our
scope of review is plenary.” Commonwealth v. Felder, 75 A.3d 513, 515
(Pa. Super. 2013), appeal denied, 85 A.3d 482 (Pa. 2014) (citation omitted).
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6
Generally, we would deem Appellant’s issue waived for his failure to raise it
on direct appeal. See 42 Pa.C.S.A. § 9543(a)(3) (“To be eligible for relief
under this subchapter, the petitioner must plead and prove by a
preponderance of the evidence . . . [t]hat the allegation of error has not
been . . . waived.”); 42 Pa.C.S.A. § 9544(b) (“[A]n issue is waived 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 postconviction proceeding.”).
Likewise, Appellant fails to provide properly developed argument. See
Commonwealth v. B.D.G., 959 A.2d 362, 371-72 (Pa. Super. 2008)
(finding issue waived where not properly developed with pertinent discussion
and citation to authority in support thereof); (see also Appellant’s Brief, at
8-9); Pa.R.A.P. 2119(a)-(b). However, because a challenge to subject
matter jurisdiction cannot be waived, see Commonwealth v. Mockaitis,
834 A.2d 488, 494 n.2 (Pa. 2003), we will address the merits of Appellant’s
claim.
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It is well-settled that “[a]ll courts of common pleas have statewide
subject matter jurisdiction in cases arising under the Crimes Code.”
Commonwealth v. Miskovitch, 64 A.3d 672, 688 (Pa. Super. 2013),
appeal denied, 78 A.3d 1090 (Pa. 2013) (citation omitted). However,
pursuant to 74 P.S. § 1, “[s]tate courts have no jurisdiction over crimes
committed in most federal buildings[.]” Commonwealth v. Mangum, 332
A.2d 467, 468 (Pa. Super. 1974). Specifically, 74 P.S. § 1 states, in
pertinent part:
The jurisdiction of this State is hereby ceded to the United
States of America over all such pieces or parcels of land, not
exceeding ten acres in any one township, ward or city, or
borough, within the limits of this State, as have been or shall
hereafter be selected and acquired by the United States for the
purpose of erecting post offices, custom houses or other
structures, exclusively owned by the general government, and
used for its purposes[.] . . .
* * *
The jurisdiction so ceded to the United States of America is
granted upon the express condition that the
Commonwealth of Pennsylvania shall retain concurrent
jurisdiction, with the United States in and over the lands and
buildings aforesaid, in so far that . . . such criminal process as
may issue under the authority of the Commonwealth of
Pennsylvania against anyone charged with crime committed
outside said land, may be executed thereon in the same manner
as if this jurisdiction had not been ceded. . . .
74 P.S. § 1 (emphases added); (see also Appellant’s Brief, at 8).
Here, Appellant utterly fails to meet his burden of proving his claim.
The record is devoid of any evidence that the bridge at issue is federal
property. (See PCRA Ct. Op., at 16). Indeed, our independent review of
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the applicable law reveals that section 1 has only been applied to cede
jurisdiction to the federal government in criminal matters where the conduct
complained of occurred in a federally owned building. See, e.g., Mangum,
supra at 468 (applying section 1 to criminal conduct in a federal post
office). Therefore, because Appellant provides absolutely no pertinent
authority or evidence supporting a claim that the Lehigh Trestle is federal
property or otherwise a structure contemplated by section 1, and we are not
aware of any, we conclude that Appellant’s first claim does not merit relief.
In the remainder of Appellant’s issues, other than providing boilerplate
law for general legal principles, Appellant utterly fails to provide pertinent
legal citation or discussion. (See Appellant’s Brief, at 9-14). Indeed, the
sum total of his “discussion” of these issues is a recitation of the facts in the
light most favorable to him, followed by conclusions that his issues are
meritorious. (See id.). Therefore, Appellant’s remaining issues are waived.
See B.D.G., supra at 371-72; Pa.R.A.P. 2101, 2119(a)-(b). Moreover, to
the extent we can discern his arguments, they would not merit relief.
In his second issue, Appellant maintains that, although “he agreed to
the stipulation grading the [simple assault] offense as a misdemeanor of the
second degree, there was considerable testimony at the sentencing hearing
that [he] believed that the grading should have been under the mutual
consent portion of the statute.” (Appellant’s Brief, at 11).
It has long been the law in this Commonwealth that:
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[A] plea of guilty will not be deemed invalid if the circumstances
surrounding the entry of the plea disclose that the defendant had
a full understanding of the nature and consequences of his plea
and that he knowingly and voluntarily decided to enter the plea.
Our law presumes that a defendant who enters a guilty plea was
aware of what he was doing. He bears the burden of proving
otherwise. . . . Moreover, [t]he law does not require that [the
defendant] be pleased with the outcome of his decision to enter
a plea of guilty: All that is required is that [his] decision to plead
guilty be knowingly, voluntarily and intelligently made.
Commonwealth v. Reid, 117 A.3d 777, 782-83 (Pa. Super. 2015)
(citations and quotation marks omitted); see also Commonwealth v.
McCauley, 797 A.2d 920, 922 (Pa. Super. 2001) (“A defendant is bound by
the statements he makes during his plea colloquy, and may not assert
grounds for withdrawing the plea that contradict statements made when he
pled.”) (citation omitted).
In this case, it appears that Appellant is attempting to secure PCRA
relief on the basis of “[a] plea of guilty unlawfully induced where the
circumstances make it likely that the inducement caused the petitioner to
plead guilty and the petitioner is innocent.” 42 Pa.C.S.A. §
9543(a)(2)(iii) (emphasis added); (see also Appellant’s Brief, at 11).
However, at no time, either in this Court or in the trial court, did Appellant
represent that he is innocent. In fact, he admitted that he assaulted the
victim. (See N.T. Guilty Plea Hearing, 8/15/13, at 8). Therefore, he is not
entitled to PCRA relief. See 42 Pa.C.S.A. § 9543(a)(2)(iii). Additionally,
there is no evidence of any unlawful inducement, in spite of Appellant’s claim
that, although he stipulated to the grading of the simple assault charge as a
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misdemeanor of the second degree, “he believed that there was an
agreement with the Commonwealth that the criminal information would be
amended to reflect [his] understanding” that the “grading should have been
under the mutual consent portion of the statute.” (Appellant’s Brief, at 11).
This argument is belied by the record, which does not contain any
evidence to support Appellant’s claim. Appellant signed a stipulation, a
written guilty plea, and a guilty plea colloquy form in which he agreed to
plead guilty to simple assault as a misdemeanor of the second degree in
exchange for the Commonwealth dropping all other charges, including
aggravated assault. (See Stipulation, 7/11/13; Guilty Plea, 8/15/13; Guilty
Plea Colloquy, 8/15/13, at unnumbered page 6). Also, at sentencing,
Appellant’s counsel, Kent Watkins, Esquire, confirmed that the agreement
was that the Commonwealth would drop the aggravated assault charge, if
Appellant pleaded guilty to simple assault with a weapon. (See N.T.
Sentencing, 10/28/14, at 8-9; see also N.T. Guilty Plea Hearing, at 8). The
written stipulation signed by Appellant supports this understanding. (See
Stipulation, 7/11/13).
Hence, based on our independent review of the record, we agree with
the PCRA court that “there is no evidence of record to suggest that . . .
[Appellant’s] guilty plea[ was] ‘illegally induced.’” (PCRA Ct. Op., at 24);
see Reid, supra at 782-83; McCauley, supra at 922. Therefore,
Appellant’s second issue would lack merit.
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In his third issue, Appellant maintains that his trial counsel was
ineffective. (See Appellant’s Brief, at 11-13).7 This issue also would lack
merit.
It is well-settled in this Commonwealth that:
[C]ounsel is presumed effective, and a [petitioner] bears the
burden of proving otherwise. In order to be entitled to relief on
a claim of ineffective assistance of counsel, the PCRA petitioner
must plead and prove by a preponderance of the evidence that:
(1) the underlying claim has arguable merit; (2) counsel whose
effectiveness is at issue did not have a reasonable basis for his
action or inaction; and (3) the PCRA petitioner suffered prejudice
as a result of counsel’s action or inaction.
Commonwealth v. Steele, 961 A.2d 786, 796-97 (Pa. 2008) (citing
Commonwealth v. Pierce, 786 A.2d 203, 213 (Pa. 2001)) (most citations
omitted). “Where it is clear that a petitioner has failed to meet any of the
three, distinct prongs of the Pierce test, the claim may be disposed of on
that basis alone . . . .” Id. at 797 (citation omitted). Furthermore, “a
petitioner must set forth and individually discuss substantively each prong of
the Pierce test.” Id. (citations omitted).
In this case, Appellant maintains that, because he questioned the
grading of the simple assault charge before sentencing, trial counsel was
ineffective in neither advising him of the implications of pleading guilty nor
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7
Appellant’s statement of questions involved also alleges the ineffectiveness
of his original PCRA counsel. (See Appellant’s Brief, at 3). However,
Appellant has completely abandoned this allegation in the argument section
of his brief. (See id. at 11-13). Therefore, we will not address this claim.
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filing a timely post-sentence motion on his behalf. (See Appellant’s Brief, at
12-13). However, he fails to address any of the Pierce prongs, or provide
any other support for his bald claim that counsel was ineffective. He does
not even argue that he asked counsel to file a post-sentence motion or
explain of what counsel was supposed to advise him in terms of the
sentence’s implications. (See id.). Appellant’s merely conclusory claims do
not satisfy his burden of establishing ineffectiveness. See Steele, supra at
796-97; see also Commonwealth v. Ousley, 21 A.3d 1238, 1244 (Pa.
Super. 2011), appeal denied, 30 A.3d 487 (Pa. 2011) (“[B]efore a court will
find ineffectiveness of counsel for failing to file a direct appeal, the petitioner
must prove that he requested a direct appeal and the counsel disregarded
the request.”) (citation omitted).
Accordingly, we conclude that the PCRA court properly found that
Appellant has failed to meet his burden of pleading and proving counsel’s
ineffectiveness by satisfying the three prongs of the Pierce test. See
Steele, supra at 796-97; Ousley, supra at 1244. Appellant’s third issue
would not merit relief.
In his fourth claim, Appellant argues that the PCRA court erred in
denying his petition without a hearing. (See Appellant’s Brief, at 13-14).
This issue would not merit relief.
It is well-settled that “there is no absolute right to a hearing pursuant
to the PCRA. A petition for post-conviction relief may be denied without a
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hearing when the court determines that there are no genuine issues
concerning any material fact, and that the petitioner is not entitled to relief.”
Commonwealth v. Camps, 772 A.2d 70, 75 (Pa. Super. 2001) (citations
omitted); see Pa.R.Crim.P. 907.
Here, in its Rule 907 notice, the court advised Appellant that it
intended to dismiss his PCRA petition without a hearing, in part on the basis
of PCRA counsel’s Turner/Finley letter. (See Rule 907 Notice, 3/30/15).
The letter exhaustively addressed Appellant’s issues, and found that they
lacked merit where Appellant stipulated that he would plead guilty to second
degree simple assault; signed a written guilty plea; completed a written plea
colloquy; entered a knowing, voluntary, and intelligent guilty plea in open
court; failed to provide any evidence of another written stipulation
evidencing an agreement to a lower simple assault grading; and the record
lacked support for an ineffectiveness of counsel claim. (See Turner/Finley
No Merit Letter, 3/27/15, at 2-6).
After our independent review of the record, we agree that it supports
the PCRA court’s finding that Appellant failed to establish a genuine issue of
material fact. See Camps, supra at 75. Indeed, although Appellant
maintains that the PCRA court’s dismissal of his petition without a hearing
was in error where he had witnesses whom he would have subpoenaed to
testify, he fails to identify exactly what these individuals would have said on
his behalf, or how they would have created a genuine issue of material fact.
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(See Appellant’s Brief, at 14). It is not our duty to act as Appellant’s
counsel and develop an argument on his behalf. See Commonwealth v.
Freeman, 128 A.3d 1231, 1249 (Pa. Super. 2015). Therefore, we conclude
that Appellant’s fourth issue would lack merit, and that the PCRA court
properly exercised its discretion when it denied his PCRA petition without a
hearing. See Rigg, supra at 1084.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 9/1/2016
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