Com. v. Moore, R.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
RASUL MOORE :
:
Appellant : No. 3211 EDA 2017
Appeal from the PCRA Order September 25, 2017
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0508041-2004
BEFORE: OTT, J., KUNSELMAN, J., and McLAUGHLIN, J.
MEMORANDUM BY McLAUGHLIN, J.: Filed: December 13, 2019
Rasul Moore appeals from the order dismissing as meritless his petition
filed under the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-
9546. We conclude that he failed to plead and prove his counsel was
ineffective for failing to object to the reasonable doubt jury instruction. We
further conclude he has waived his remaining claims, as he did not raise them
before the PCRA court. We thus affirm.
In March 2005, a jury convicted Moore of third-degree murder and
possession of an instrument of crime (“PIC”).1 The trial court sentenced Moore
to 20 to 40 years’ imprisonment for the murder conviction and two and a half
to five years’ imprisonment for the PIC conviction. Moore appealed, and this
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1 18 Pa.C.S.A. §§ 2502(c) and 907, respectively.
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Court affirmed. Moore filed a petition for allowance of appeal, which the
Pennsylvania Supreme Court denied on August 21, 2009.
In April 2010, Moore filed a PCRA petition. The PCRA court appointed
counsel, who filed two amended petitions. In the amended petitions, Moore
alleged trial counsel was ineffective for failing to object to the
Commonwealth’s use of Ada Patterson’s police interview, in eliciting
information from a police form that contained a description of the shooter, for
failing to object and move for a mistrial when a witness stated he identified
Moore from a mugshot, for advising Moore his criminal record could be used
to impeach him if he testified, even though he had no crimen falsi offenses,
and for failing to appeal the discretionary aspects of Moore’s sentence. In
January 2015, the PCRA court dismissed Moore’s petition as meritless. Moore
did not file a notice of appeal.
In August 2015, Moore filed a second PCRA petition, claiming he directed
PCRA counsel to file an appeal, but counsel failed to do so. In March 2016,
Moore filed a supplement to his PCRA petition, seeking relief under Alleyne
v. United States, 570 U.S. 99 (2013). The court appointed new counsel.
Counsel filed a motion for leave of court to supplement the amended PCRA
petition with a claim challenging the reasonable doubt jury instruction given
at trial, and counsel’s ineffectiveness for not objecting to the instruction.
Moore did not seek leave to raise any additional claims.
In September 2017, the PCRA court granted Moore’s PCRA petition
alleging ineffectiveness of PCRA counsel for failing to file an appeal of the
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order dismissing his PCRA petition, finding he pled and proved a time-bar
exception, and denied Moore’s Alleyne claim:
AND NOW, this 25 day of September, 2017, it is hereby
ORDERED and DECREED that Petitioner’s Petition is
GRANTED as follows:
Petitioner’s claim requesting reinstatement of PCRA
appellate rights is granted by agreement. Moore has met
new fact exception plus 60 day requirement. Petitioner’s
claim that his sentence is illegal under Commonwealth v.
Alleyne is dismissed because Commonwealth v. Alleyne
does not apply retroactively. Daniel Silverman, Esquire
appointed for purpose of appeal. Notice of Appeal to the
Superior Court from the Denial of his PCRA Petition must be
filed within 30 days of the date of this Order.
Order, filed Sept. 25, 2017.2
The order did not address the motion for leave to file a supplemental
petition arguing counsel was ineffective for failing to object to the reasonable
doubt jury instruction. The court ordered Moore to file a Rule 1925(b) concise
statement of matters complained of on appeal, and Moore filed one in October
2017. The PCRA court did not file a Rule 1925(a) opinion until April 2019.3 In
that opinion, the PCRA court states that it granted counsel’s motion for leave
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2 Moore’s PCRA petition explained that he learned on July 9, 2015, via letter,
that his counsel had not filed an appeal. Moore attached the letter to the
petition, as well as correspondence from him to his lawyer requesting an
appeal and seeking status updates as to his case. He filed the petition seeking
reinstatement of his appeal rights in August 2015.
3 In August 2018, this Court informed the trial court that the original record
in this case had not yet been filed with this Court. In February 2019, we
granted Moore’s application to compel, and ordered that the trial court
transmit the record and 1925(a) opinion within 30 days. This court received
the original record in March 2019 and the 1925(a) opinion in April 2019.
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to supplement the petition, and addresses the claim that counsel was
ineffective for failing to object to the reasonable doubt instruction, and two
claims from the 2010 PCRA petition that Moore had raised in the 1925(b)
statement. Trial Court Opinion, filed Apr. 18, 2019, at 4, 6-8. The court found
the claims meritless. Moore filed a Notice of Appeal.
Moore raises the following claims on appeal:
1. Regarding the underlying claim that trial counsel was
ineffective for failing to object to the trial court’s instruction
on reasonable doubt:
(a) did the PCRA court err in failing to address this claim
and/or
(b) was PCRA counsel ineffective for failing to raise this
claim?
2. Was PCRA counsel ineffective for failing to raise the claim
that trial counsel was ineffective for failing to object to the
trial court’s instruction to the jury that “[a]s you go through
this process, you will very likely conclude that one of the
witnesses testified falsely and did so intentionally”, as this
invaded the province of the jury, directing it to disbelieve
the lone defense witness?
3. Was PCRA counsel ineffective for failing to raise the claim
that trial counsel was ineffective for failing to object to the
trial court’s concerted efforts to coerce a guilty verdict from
this jury?
4. Was PCRA counsel ineffective for failing to raise the claim
that direct appeal counsel was ineffective for failing to raise
the claim that the trial court erred in precluding the defense
alibi witness from testifying that the reason she recalled
Moore’s whereabouts on the day and at the time in question
(as opposed to any other day) was because she had heard
later that same day that the decedent had been shot and
killed?
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5. Was PCRA counsel ineffective for failing to raise the claim
that trial counsel was ineffective for failing to object to the
prosecutor’s closing statement in which he argued that
critical witness Detective Richard Harris would not lie
because to do so would risk “everything”, including his
“badge” and “pension”, as these statements were not
supported by any evidence in the record, constitute
improper vouching for the credibility of the witness, and
invite the jury to speculate on the adverse consequences to
the police should it acquit the defendant?
Moore’s Br. at 3-4 (footnote omitted).
We first address Moore’s claim that his counsel was ineffective for failing
to object to the trial court’s reasonable doubt jury instruction,4 which included
an example concerning whether jury members would pursue an experimental
treatment for a loved one with a life-threatening condition:
The Commonwealth bears the burden; and if the evidence
that has been presented in the entire case fails to meet the
Commonwealth’s burden, then your verdict must be not
guilty.
On the other hand, if the evidence does prove beyond a
reasonable doubt that Rasul Moore is guilty of the crimes
charged, then your verdict must be guilty.
Now, although the Commonwealth bears the burden of
proving that this citizen is guilty, that does not mean that
the Commonwealth must prove its case beyond all doubt.
The Commonwealth is not required to prove its case to a
mathematical certainty nor must it demonstrate the
complete impossibility of innocence. A reasonable doubt is
a doubt that would cause a reasonably careful and sensible
person to pause, to hesitate, or to refrain from acting upon
a matter of the highest importance to their own affairs or to
their own interests. A reasonable doubt must fairly arise out
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4Because the trial court states in its 1925(a) opinion that it granted leave to
supplement the petition, and addressed the issue, we do not find remand for
entry of an order granting the petition necessary.
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of the evidence that was presented or out of the lack of
evidence presented with respect to some element of the
crimes charged.
...
What I want you to focus on is . . . reasonable doubt, what
it means when a reasonably careful and sensible person
pauses or hesitates or refrains from acting. Take, for
example, if someone you loved dearly -- your child, your
spouse, your significant other -- someone truly precious to
you was told by their physician that they had a life-
threatening condition, condition was terminal, and that the
only protocol that existed for treatment of that condition
was an experimental surgery.
Now, if you're like me, you very likely are going to seek a
second opinion. You’re probably going to get a third opinion.
You’re probably going to go on the Internet and research
what is this condition your loved one has.
You might call up, asking them, “What have you heard?
Does this work?” Obviously, what you’re looking for is a
guarantee that the surgery will cure your loved one; but at
some point the question will be called. There is no
guarantee. It’s an experimental procedure. If you choose to
go forward with this procedure for your loved one, it may
not necessarily be because you have eliminated all doubt. It
will be because you have eliminated all reasonable doubt. If
you have reasonable doubt, you won’t have the procedure;
but if all reasonable doubt is gone, you will go forward.
A reasonable doubt must be a real doubt. It may not be one
that is imagined or manufactured in order to avoid carrying
out an unpleasant responsibility.
You may not find this citizen guilty based upon a mere
suspicion of guilt. The Commonwealth bears the burden of
proving that this citizen is guilty beyond a reasonable doubt.
If the Commonwealth has met that burden, then the
defendant is no longer presumed to be innocent; and you
must find him guilty. On the other hand, if the
Commonwealth has not met its burden, you must find him
not guilty.
N.T., 3/23/2005, at 136-39.
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Our standard of review from the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Ousley, 21 A.3d 1238, 1242 (Pa.Super. 2011).
To prevail on an ineffective assistance of counsel claim, the petitioner
must establish: “(1) his underlying claim is of arguable merit; (2) counsel had
no reasonable basis for his action or inaction; and (3) the petitioner suffered
actual prejudice as a result.” Commonwealth v. Spotz, 84 A.3d 294, 311
(Pa. 2014). “[C]ounsel is presumed to be effective and the burden of
demonstrating ineffectiveness rests on appellant.” Ousley, 21 A.3d at 1244
(quoting Commonwealth v. Rivera, 10 A.3d 1276, 1279 (Pa.Super. 2010)).
“The failure to prove any one of the three [ineffectiveness] prongs results in
the failure of petitioner's claim.” Id. (quoting Rivera, 10 A.3d at 1279).
Moore relies on Brooks v. Gilmore, 2017 WL 3475475 (E.D.Pa. Aug.
11, 2017), a case from the United States District Court for the Eastern District
of Pennsylvania that found an instruction nearly identical to the instruction at
issue to be unconstitutional.5 We are “not bound by the decisions of federal
courts inferior to the U.S. Supreme Court.” In re Stevenson, 40 A.3d 1212,
1216 (Pa. 2012). Further, there is no published decision from this Court or
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5 In this appeal, the Commonwealth does not argue that the instruction is
constitutional. Although the Commonwealth initially filed an appeal in Brooks,
it subsequently withdrew the appeal by agreement of the parties. Brooks v.
Superintendent Greene SCI, 2018 WL 1304895 (3d Cir. Feb. 28, 2018).
The United States Court of Appeal for the Third Circuit therefore has not
decided the issue.
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from the Pennsylvania Supreme Court deciding whether the instruction at
issue is constitutional.
Moore concedes that the instruction included a correct statement of the
reasonable doubt standard. Moore’s Br. at 17. However, he argues that the
medical illustration “inserted a requirement that any doubt worthy of acquittal
must be so serious and grave that it would rise to the level causing a mother
to reject surgery for her dying child when surgery was the only protocol that
could save the child.” Id. He claims this example “relieved the Commonwealth
of its high burden to prove guilt beyond a reasonable doubt.” Id. at 18. He
further argues that by using the term “moving forward,” the instruction was
error because the instruction should inform a jury to vote for acquittal if the
jury would pause or hesitate before acting. Id. at 23.
The PCRA court concluded that the underlying claim—that the court
issued an unconstitutional reasonable doubt instruction—lacked merit. Trial
Court Op., Apr. 18, 2019, at 6-7. We agree.
We review “the jury charge as a whole to determine if it is fair and
complete.” Commonwealth v. Jones, 954 A.2d 1194, 1198 (Pa.Super.
2008) (quoting Commonwealth v. Einhorn, 911 A.2d 960, 975 (Pa.Super.
2006)). “[A]n imperfect instruction does not constitute reversible error where
the charge, taken as a whole, fairly and accurately conveys the essential
meaning.” Commonwealth v. Uderra, 862 A.2d 74, 92 (Pa. 2004). “A trial
court has wide discretion in phrasing its jury instructions, and can choose its
own words as long as the law is clearly, adequately, and accurately presented
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to the jury for its consideration.” Jones, 954 A.2d at 1198 (quoting Einhorn,
911 A.2d at 975).
A jury instruction violates due process if there is a reasonable likelihood
that the jury interpreted the instruction to allow a conviction based on a
degree of proof below the reasonable doubt standard. Victor v. Nebraska,
511 U.S. 1, 5 (1994). The United States Supreme Court has found that
defining reasonable doubt as a “grave uncertainty” or “actual substantial
doubt” suggests a higher degree of doubt than required for acquittal under
the reasonable doubt standard. Cage v. Louisiana, 498 U.S. 39, 41 (1991).
It concluded a reasonable jury could interpret such terms, when considered
“with reference to ‘moral certainty,’ rather than evidentiary certainty, . . . to
allow a finding of guilt based on a degree of proof below that required by the
Due Process Clause.” Id. The Supreme Court clarified that, when determining
whether an instruction is unconstitutional, “the proper inquiry is not whether
the instruction ‘could have’ been applied in an unconstitutional manner, but
whether there is a reasonable likelihood that the jury did so apply it.” Victor,
511 U.S at 6 (citing Estelle v. McGuire, 502 U.S. 62, 72, and n. 4, (1991)).
Here, when viewed as a whole, the charge accurately informed the jury
that it could find Moore guilty only if it found that the Commonwealth proved
the elements of the offense beyond a reasonable doubt. The trial court
accurately defined reasonable doubt as:
A reasonable doubt is a doubt that would cause a reasonably
careful and sensible person to pause, to hesitate, or to
refrain from acting upon a matter of the highest importance
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to their own affairs or to their own interests. A reasonable
doubt must fairly arise out of the evidence that was
presented or out of the lack of evidence presented with
respect to some element of the crimes charged.
N.T., 3/23/2005, at 136-37.
The court’s analogy was at best ambiguous. It asked the jurors to
consider a decision between undergoing an experimental surgery, with
unknown efficacy and unknown risk, recommended by a single doctor, and
leaving a loved one with a “life threatening” condition. Moore contends the
instruction required the jury to choose between an experimental procedure
and death, such that the jury could have understood the degree of doubt the
Commonwealth must overcome to secure a conviction as being lower than the
law requires. That is one possibility. On the other hand, the jury could have
viewed the “experimental” nature of the procedure as risking a decrease in
the loved one’s quality of life, with little to no possibility of saving the loved
one’s life, such that one might be unwilling to “go forward.”
It is thus not clear that the illustration lowered the degree of doubt, as
Moore contends, rather than increasing it. When we view the ambiguous
medical illustration in combination with the trial court’s accurate definition of
the reasonable doubt standard, we do not believe there is a “reasonable
likelihood” that the jury applied the reasonable doubt standard in an
unconstitutional manner. See also Commonwealth v. Nam, 2019 WL
3946049, at *3 (Pa.Super. filed Aug. 21, 2019) (concluding an almost identical
set of instructions “when read in context of the entire instruction . . . states
the law accurately”).
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We therefore conclude that the PCRA court did not err in finding the
underlying claim regarding the reasonable doubt instruction lacked merit, and
therefore that Moore failed to establish his counsel was ineffective for failing
to object to the instruction. Because we find the underlying issue lacks merit,
we do not address the remaining ineffectiveness prongs.
Moore has waived his remaining issues on appeal, as he failed to raise
them in his PCRA petitions, or in his supplement to his PCRA petition.
Commonwealth v. Reid, 99 A.3d 470, 494 (Pa. 2014) (concluding claim
waived where not raised in PCRA petition and raised for first time in
supplemental 1925(b) statement).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/13/2019
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