Com. v. Moody, B.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
BRANDON NATHANIEL N. MOODY :
:
Appellant : No. 2184 EDA 2018
Appeal from the PCRA Order Entered June 13, 2018
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0006659-2007
BEFORE: OTT, J., DUBOW, J., and COLINS, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 19, 2019
Brandon Nathaniel N. Moody appeals, pro se, from the order entered
June 13, 2018, in the Court of Common Pleas of Philadelphia County, that
dismissed, without a hearing, his first petition filed pursuant to the Post
Conviction Relief Act (PCRA).1 Moody seeks relief from the judgment of
sentence of life, imposed upon his conviction of murder in the first degree,
criminal conspiracy, and possession of an instrument of crime (PIC).2 On
appeal, Moody claims that the PCRA court erred in: (1) dismissing his petition
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 Retired Senior Judge assigned to the Superior Court.
1 42 Pa.C.S.A. §§ 9541-9546.
2 18 Pa.C.S.A. §§ 2502(a), 903, and 907, respectively.
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without holding an evidentiary hearing; (2) conducting a Grazier hearing3
instead of an “irreconcilable differences” hearing; (3) not giving him the
opportunity to amend his PCRA petition; and (4) adopting counsel’s no-merit
letter.4 Moody’s Brief, at 4-5. Moody also contends that PCRA counsel was
ineffective for filing a defective no-merit letter and failing to file an amended
PCRA petition. Id. at 5. Based upon the following, we affirm.
This Court previously described the facts and procedural history of this
matter as follows:
The trial court opinion sets forth the relevant facts of this case as
follows:
On July 2, 2006, at 2:16 A.M., Philadelphia police
officers responded to a radio report of a shooting at
4052 N. 8th Street in North Philadelphia. The officers
arriving at the scene saw a crowd gathered outside
the Latin Club, a bar and dance club. Across the street
from the Latin Club the officers found a man with a
single gunshot wound to the head, still alive and lying
in the street. A medic drove the man, a young
Hispanic male later identified as Israel Rivera, to
Temple University Hospital where he subsequently
died. A ballistics expert, Mr. Lay, testified that the
crime scene was consistent with the victim being shot
from behind, based on the location of the decedent’s
blood and the bullet casing in relation to the location
of the decedent’s body.
At trial, the victim’s friend, Edwardo Figueroa testified
that he was the decedent’s best friend and went with
him to the Latin Club the night the shooting occurred.
Mr. Figueroa was in line to enter the club when he
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3 See Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
4 For ease of disposition, we have reordered the issues in Moody’s brief.
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observed the decedent engaged in a verbal altercation
with [[Moody] and his co-defendant, Eddie] Colon,
who were in the back of the line. Mr. Figueroa
intervened in the altercation, at which point [[Moody]
and Mr. Colon] walked away from the club. Mr.
Figueroa recognized Mr. Colon from their Hunting Park
neighborhood.
At this point the decedent told Mr. Figueroa he did not
want to enter the Latin Club and the two men walked
away from the club. Soon thereafter, Mr. Figueroa
heard the sound of footsteps running towards him and
the decedent. Mr. Figueroa then saw Colon run up to
and grab the decedent in a bear hug from behind and
heard him say, “You're not going anywhere, Poppy.”
After Colon grabbed the decedent, Mr. Figueroa saw
[Moody] reach over Colon into the back of the victim’s
head. Mr. Figueroa stood a few feet away as the
decedent’s body went limp and. . .Colon let him fall to
the ground. After shooting the decedent Mr. Figueroa
heard [Moody] say, “[d]one deal” before he and Colon
fled the area.
Mr. Figueroa also fled the scene out of fear [[Moody]
and Mr. Colon] might try to shoot him. He ran to a
friend’s house where he called 911 to report the
shooting. Mr. Figueroa then went to Temple Hospital
after learning the decedent had been taken there, and
upon his arrival identified himself as a witness to the
police who then took his statement.
A warrant was issued for [Moody’s] arrest. He turned
himself into police approximately seven months from
the date of the shooting.
(Trial Court Opinion, filed February 1, 2010, at 2-3) (internal
citations omitted). On May 23, 2008, a jury convicted [Moody] of
first degree murder, criminal conspiracy, and PIC. On July 9,
2008, the court imposed an aggregate sentence of life
imprisonment. On July 23, 2008, [Moody] timely filed a pro se
notice of appeal. On May 7, 2009, [Moody] filed a motion with
this Court to proceed pro se, and on June 9, 2009, this Court
ordered the trial court to conduct a hearing pursuant to [Grazier,
supra]. On July 1, 2009, the court conducted a Grazier hearing,
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and on the same date, the court determined [Moody] had made a
knowing, intelligent, and voluntary waiver of counsel, and
permitted [him] to proceed pro se. On June 12, 2009, the court
ordered [Moody] to file a concise statement of matters complained
of on appeal, pursuant to Pa.R.A.P. 1925(b), which he filed on
September 16, 2009.
Commonwealth v. Moody, No. 2279 EDA 2008, at 1-3 (Pa. Super. Feb. 10,
2011) (unpublished memorandum) (footnote omitted).
On February 10, 2011, this Court affirmed the judgment of sentence.
Commonwealth v. Moody, 24 A.3d 449 (Pa. Super. 2011). On November
14, 2011, the Pennsylvania Supreme Court denied leave to appeal.
Commonwealth v. Moody, 34 A.3d 828 (Pa. 2011).
On October 26, 2012, Moody timely filed a pro se PCRA petition, which
raised five issues.5 The PCRA court subsequently appointed counsel. On July
21, 2014, despite being represented by counsel, Moody, acting pro se, filed
an amended PCRA petition.6 On October 20, 2014, counsel moved to
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5 PCRA counsel split Moody’s first claims of ineffective assistance of counsel
into to two issues. See Petition for Post-Conviction Collateral Relief,
10/26/2012, at 3-8; Turner/Finley Letter, 10/20/14, at unnumbered page 2.
6This petition included the issues raised in Moody’s original PCRA petition as
well as three additional claims regarding the alleged ineffectiveness of trial
counsel. Amended Petition for Post-Conviction Collateral Relief, 7/21/2014,
at 3-10.
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withdraw.7 On October 31, 2014, Moody filed an application for leave to file
a second amended PCRA petition and for appointment of new counsel.8
On May 18, 2015, the PCRA court held a Grazier hearing. At the
conclusion of the hearing, the court granted counsel’s request to withdraw and
permitted Moody to proceed pro se. On May 19, 2015, the PCRA court issued
a Pa.R.Crim.P. 907 notice of intent to dismiss the PCRA petition without a
hearing. Moody filed a pro se response on June 5, 2015, which raised a series
of challenges to PCRA counsel’s effectiveness and to the manner in which the
PCRA court handled his petition. On November 30, 2015, the PCRA court
directed former counsel to file a response to the claims raised in Moody’s
response to the Rule 907 notice. On January 4, 2016, counsel filed a second
Turner/Finley letter in which he discussed all of the objections Moody raised
in his response to the Rule 907 notice as well as the claims raised in the hybrid
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7 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
8Moody did not attach a proposed amended PCRA petition to the motion. The
motion is a litany of complaints against PCRA counsel, justifications of the
merits of the claims Moody raised in his PCRA petition, and a large number of
attachments. Application to File Amended [PCRA Petition] and Appointment
of New Counsel, 10/31/2014, at 1-7 and Appendix.
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first amended PCRA petition.9 The PCRA court ultimately dismissed the
petition on June 13, 2018. The instant, timely appeal followed.10
Moody appeals from the denial of his PCRA petition. Our standard of
review is settled. We review the denial of a post-conviction petition to
determine whether the record supports the PCRA court’s findings and whether
its order is otherwise free of legal error. See Commonwealth v. Faulk, 21
A.3d 1196, 1199 (Pa. Super. 2011). To be eligible for relief pursuant to the
PCRA, Moody must establish, inter alia, that his conviction or sentence
resulted from one or more of the enumerated errors or defects found in 42
Pa.C.S.A. § 9543(a)(2). See 42 Pa.C.S.A. § 9543(a)(2). He must also
establish that the issues raised in the PCRA petition have not been previously
litigated or waived. See 42 Pa.C.S.A. § 9543(a)(3). An allegation of error “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.” 42 Pa.C.S.A. § 9544(b). Further,
. . . a PCRA petitioner is not automatically entitled to an
evidentiary hearing. We review the PCRA court’s decision
dismissing a petition without a hearing for an abuse of discretion.
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9 The PCRA court does not explain, nor does the certified record reflect, the
reason for the lengthy delay between the response to the Rule 907 notice
and the dismissal of the petition.
10The PCRA court did not order Moody to file a concise statement of errors
complained of on appeal. On August 20, 2018, the PCRA court issued an
opinion.
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[T]he right to an evidentiary hearing on a post-
conviction petition is not absolute. It is within the
PCRA court’s discretion to decline to hold a hearing if
the petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. It is
the responsibility of the reviewing court on appeal to
examine each issue raised in the PCRA petition in light
of the record certified before it in order to determine
if the PCRA court erred in its determination that there
were no genuine issues of material fact in controversy
and in denying relief without conducting an
evidentiary hearing.
Commonwealth v. Miller, 102 A.3d 988, 992 (Pa. Super. 2014) (citations
omitted).
In his first issue, Moody claims that the PCRA Court erred in dismissing
his petition without a hearing because he attached witness certifications to the
petition. Moody’s Brief, at 17-20. However, Moody based this claim upon a
misinterpretation of 42 Pa.C.S.A. 9545(d)(1) and the Pennsylvania Supreme
Court’s per curiam decision in Commonwealth v. Robinson, 947 A.2d 710(Pa. 2008). Id.42 Pa.C.S.A. § 9545 provides in pertinent part:
(d) Evidentiary hearing.--
(1) The following apply:
(i) Where a petitioner requests an
evidentiary hearing, the petition shall
include a certification signed by each
intended witness stating the witness’s
name, address, date of birth and
substance of testimony and shall include
any documents material to that witness’s
testimony.
****
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(iii) Failure to substantially comply with the requirements of this
paragraph shall render the proposed witness’s testimony
inadmissible.
42 Pa.C.S.A. § 9545(d)(1)(i) and (iii).
Moody appears to believe that because he attached witness
certifications to his PCRA petition he is automatically entitled to a hearing
under Section 9545. Moody’s Brief, at 18. However, this section of the statute
does not state that the inclusion of witness certifications mandates an
evidentiary hearing; rather it states that if a PCRA petitioner wants to have
witnesses testify at an evidentiary hearing, he must include witness
certifications with his request for a hearing.
Moreover, Moody’s reliance on Robinson, supra, is equally misplaced.
In Robinson, unlike in the instant matter, the PCRA court did not decide the
case on the merits, but rather dismissed the petition solely on procedural
grounds. Robinson, supra at 711. Our Supreme Court held that the PCRA
court’s finding that the appellant had not included witness certifications with
his request for a hearing was mistaken. Id. Therefore, because the PCRA
court had never decided the petition on the merits, and because it had based
its procedural decision on a misreading of the record, the Supreme Court
remanded for an evidentiary hearing. Id.
Here, the PCRA court did not dismiss the petition because Moody did not
include witness certification but rather dismissed it on the merits. See PCRA
Court Opinion, 8/20/2018, at 4-17. Thus, because the PCRA court found that
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Moody’s petition lacked merit, it acted within its discretion to dismiss the PCRA
petition without a hearing. Miller, supra at 992. Moody is not entitled to
relief on his first issue.
In his second issue, Moody contends that the PCRA court erred in
conducting a Grazier hearing rather than an “irreconcilable differences
hearing” in response to his motion seeking appointment of new counsel.
Moody’s Brief, at 26-31. While Moody attempts to phrase this claim as a
contention that he did not receive proper notice of the Grazier hearing, the
essence of his claim is that, he did not want to proceed pro se but wanted the
PCRA court to appoint new counsel once prior counsel sought leave to
withdraw. See id.
There is no constitutional right to counsel in PCRA proceedings. See
Commonwealth v. Wells, 719 A.2d 731 n.3 (Pa. 1998). Rather, the right
to counsel arises under Pennsylvania Rule of Criminal Procedure 904(c). Once
appointed, counsel is required to independently review the record and if “in
the exercise of his professional judgment, counsel determines that the issues
raised under the [PCRA] are meritless, and when the [PCRA] court concurs,
counsel will be permitted to withdraw and the petitioner may proceed pro se,
or by privately retained counsel, or not at all.” Turner, supra at 928-929.
In the instant matter, appointed counsel made such a determination and
the PCRA court concurred. Thus, Moody was not entitled to appointment of
new counsel. Id. His only choices were to retain private counsel, proceed pro
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se, or elect not to further proceed. Id. In an overabundance of caution, the
PCRA court chose to hold a Grazier hearing to ascertain that Moody
understood his options. Moody is not entitled to relief on this claim.
In his third issue, Moody contends that the PCRA court erred in not
permitting him to amend his PCRA petition. Moody’s Brief, at 21-26. We
disagree.
Moody filed his first attempt at an amended PCRA petition in July 2014,
while still represented by counsel. Under Pennsylvania law there is no right
to hybrid representation either at trial or on the appellate level. See
Commonwealth v. Padilla, 80 A.3d 1238, 1259 (Pa. 2013), cert. denied,
573 U.S. 907 (2014). Thus, the amended PCRA petition filed by Moody in July
2014 was a legal nullity and the PCRA court acted properly in not addressing
it. Commonwealth v. Williams, 151 A.3d 621, 623 (Pa. Super. 2016)
(citations omitted); see also Commonwealth v. Jette, 23 A.3d 1032, 1044
(Pa. 2011).
Moreover, with respect to Moody’s contention that the PCRA court erred
in not allowing his second amended PCRA petition, we find that the record
belies this contention. Firstly, we note that the motion for leave to amend did
not have a proposed second amended PCRA petition attached, as noted above,
it was merely a litany of complaints. While the record reflects that, the PCRA
court did not formally grant Moody’s motion for leave to amend his PCRA
petition; it implicitly accepted it. See Commonwealth v. Roney, 79 A.3d
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595, 615–616 (Pa. 2013) (noting where PCRA court did not “address or. . .
delineate” claims raised in an amended PCRA petition, it did not “implicitly or
explicitly accept” them), cert. denied, Roney v. Pennsylvania, 135 S.Ct. 56(2014). Here, the court ordered prior counsel to evaluate Moody’s response
to the Rule 907 notice. Counsel did a thorough evaluation of the merits of
both the claims raised in the response to the Rule 907 notice and those raised
in the first amended PCRA petition, see Turner/Finley Letter, 1/04/2016, at
1-11. The PCRA court addressed the claims raised in the response to the Rule
907 notice in its Rule 1925(a) opinion. PCRA Ct. Op., at 13-17. Thus, Moody’s
third issue does not merit relief.
In his fourth issue, Moody contends that the PCRA court issued an
improper Rule 907 notice when it merely adopted PCRA counsel’s merit
analysis and did not include an independent discussion of Moody’s issues in
the notice. Moody’s Brief, at 34-41. We disagree.
Pennsylvania Rule of Criminal Procedure 907 states, in pertinent part:
the judge shall promptly review the petition, any answer by the
attorney for the Commonwealth, and other matters of record
relating to the defendant's claim(s). If the judge is satisfied from
this review that there are no genuine issues concerning any
material fact and that the defendant is not entitled to post-
conviction collateral relief, and no purpose would be served by any
further proceedings, the judge shall give notice to the parties of
the intention to dismiss the petition and shall state in the notice
the reasons for the dismissal. The defendant may respond to the
proposed dismissal within 20 days of the date of the notice. The
judge thereafter shall order the petition dismissed, grant leave to
file an amended petition, or direct that the proceedings continue.
Pa.R.Crim.P. 907(1).
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The PCRA court issued such a notice and indicated that it was proposing
to dismiss the petition based upon the reasoning in counsel’s Turner/Finley
letter, which it attached. Notice Pursuant to Pennsylvania Rule of Criminal
Procedure 907, 5/19/2015. There is nothing in the text of Rule 907 that
prohibits a PCRA court from relying on a Turner/Finley letter or requiring it
to undertake an independent analysis of the issues in the notice. See
Pa.R.Crim.P. 907.
Moreover, Moody’s reliance on Commonwealth v. Glover, 738 A.2d
460 (Pa. Super. 1999) is misplaced. In Glover, the PCRA court did not draft
an independent 1925(a) opinion, and, instead, relied upon what this Court
found to be a defective Turner/Finley letter. Id. at 464-466. We held that
this was error, stating that a PCRA court must draft a full opinion. Id. at 466.
In Commonwealth v. Rykard, 55 A.3d 1177 (Pa. Super. 2012), appeal
denied, 64 A.3d 631 (Pa. 2013), this Court specifically declined to extend the
holding in Glover to Rule 907 notices. Rykard, supra at 1186.
Here, the trial court alerted Moody in its Rule 907 notice as to the
reasons why it was proposing to dismiss his petition without a hearing. It
then drafted a full and independent Rule 1925(a) opinion explaining the basis
for its decision. That is all that is required. See id. Moody’s fourth issue
does not merit relief.
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In his fifth and sixth issues, Moody claims that he received ineffective
assistance of PCRA counsel.11 Specifically, Moody avers that counsel filed a
defective Turner/Finley letter because he failed to “conduct any meaningful
consultation or communication with [Moody] or his material witness family.”
Moody’s Brief at 41; see id. at 41-47. Moody also maintains that counsel was
ineffective for failing to file an amended PCRA petition when his PCRA petition
and first amended PCRA petition contained meritorious claims. Id. at 47-74.
We disagree.
Our standard of review is as follows:
The law presumes counsel has rendered effective assistance.
When asserting a claim of ineffective assistance of counsel, the
petitioner is required to demonstrate that: (1) the underlying
claim is of arguable merit; (2) counsel had no reasonable strategic
basis for his action or inaction; and, (3) but for the errors and
omissions of counsel, there is a reasonable probability that the
outcome of the proceedings would have been different. The failure
to satisfy any prong of the test for ineffectiveness will cause the
claim to fail.
The threshold inquiry in ineffectiveness claims is whether the
issue/argument/tactic which counsel has foregone and which
forms the basis for the assertion of ineffectiveness is of arguable
merit. . . . Counsel cannot be found ineffective for failing to pursue
a baseless or meritless claim.
Commonwealth v. Bickerstaff, 204 A.3d 988, 992 (Pa. Super. 2019).
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11 Moody properly preserved his claims of ineffective assistance of PCRA
counsel by raising them in his response to the Rule 907 notice. See
Commonwealth v. Pitts, 981 A.2d 875, 879 n.3 (Pa. 2009).
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In Commonwealth v. Merritt, 827 A.2d 485, 487 (Pa. Super. 2003),
this Court reiterated the level of review necessary to secure permission to
withdraw from representation pursuant to Turner, supra and Finley, supra.
The Merritt Court stated that the PCRA court’s determination is subject to
appellate scrutiny to assure that it adhered to the following constraints:
1. PCRA counsel, in a “no-merit” letter, has detailed the nature
and the extent of his review;
2. PCRA counsel, in the “no-merit” letter, lists each issue the
petitioner wishes to have reviewed;
3. PCRA counsel must explain, in the “no-merit” letter, why
petitioner’s issues are meritless;
4. The PCRA court must conduct its own independent review of
the record; and
5. The PCRA court must agree with counsel that the petition is
meritless.
The PCRA Court’s decision is then subject to appellate scrutiny to
assure that these constraints have been followed.
Id. at 487 (citation omitted). “Counsel must also send to the petitioner: (1)
a copy of the ‘no-merit’ letter/brief; (2) a copy of counsel’s petition to
withdraw; and (3) a statement advising petitioner of the right to proceed pro
se or by new counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa.
Super. 2007) (citation omitted). Substantial compliance with these
requirements is sufficient. See Commonwealth v. Widgins, 29 A.3d 816,
819 (Pa. Super. 2011).
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The PCRA court specifically stated in its 1925(a) opinion that “counsel
complied with each of these requirements. He corresponded with [Moody],
reviewed the record and each of the issues [Moody] claimed in his initial PCRA
petition entitled him to relief, and adequately explained why the issues
[Moody] raised did not entitle him to PCRA relief.” PCRA Ct. Op, at 17
(footnote omitted).
PCRA counsel filed a motion to withdraw as counsel with the PCRA court.
He stated that he corresponded with Moody12 and reviewed Moody’s case file
and notes of testimony. See Turner/Finley Letter, 10/20/14, at unnumbered
page 1. Counsel also listed all the claims Moody raised in his PCRA petition.
See id. at unnumbered page 2. He then engaged in a thorough analysis of
those claims. See id. at unnumbered pages 2-5. Counsel attached a copy of
the letter he sent to Moody, which notified Moody of his request to withdraw
and provided an explanation of Moody’s right to proceed pro se or with private
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12 Moody does not contend that he was unable to correspond with counsel but
that counsel’s failure to obtain a Department of Corrections “control number”
meant that the correspondence between them would be opened by prison
officials, and that made Moody reluctant to share sensitive information with
him. Moody’s Brief, at 44-45. Moody fails to point to any legal support for a
claim that counsel is required to obtain a “control number.” He does not allege
that he did not receive any of counsel’s correspondence. Moreover, any
restrictions on his communication with counsel were self-imposed and had
nothing to do with counsel’s effectiveness. We decline to impose any
requirement that PCRA counsel must obtain a “control number” in order to be
effective.
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counsel. Counsel undertook the same thorough review of Moody’s additional
claims in his second Turner/Finley letter. See Turner/Finley Letter,
1/04/2016, at 1-11. Thus, PCRA counsel substantially complied with the
Turner/Finley requirements. See Merritt, supra at 487. Moody’s fifth claim
does not merit relief.13 See Widgins, supra at 819.
Moody next claims that PCRA counsel was ineffective for failing to file
an amended PCRA petition because his original PCRA petition and his first
amended PCRA petition contained meritorious claims. We disagree.
Our review of the record demonstrates that in his first Turner/Finley
letter, counsel reviewed all of the issues Moody sought to raise and clearly
explained why Moody had either waived them because they had been
previously litigated on direct appeal, or, as to the remaining claims, why they
lacked merit. See Turner/Finley Letter, 10/20/2014, at unnumbered pages
1-5. In his second Turner/Finley letter, counsel did the same for all of the
additional claims in both the response to the Rule 907 notice and the first
amended PCRA petition. See Turner/Finley letter, 1/04/16, at 1-11. In its
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13 Moody complains that counsel failed to contact his family members.
However, Moody does not explain why counsel needed to contact his family
or how the failure to do so prejudiced him. Thus, Moody fails to set forth the
ineffectiveness analysis required by Strickland v. Washington, 466 U.S.
668, 687 (1984). Because he did not establish any of the three prongs, we
must deem counsel’s assistance constitutionally effective. See
Commonwealth v. Rolan, 964 A.2d 398, 406 (Pa. Super. 2008) (holding
where appellant fails to address three prongs of ineffectiveness test, he does
not meet his burden of proving ineffective assistance of counsel, and counsel
is deemed constitutionally effective).
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Rule 1925(a) opinion, the PCRA court also discussed why Moody had waived
certain of his claims or why they lacked merit. PCRA Ct. Op., at 4-18. We
have thoroughly reviewed the trial record, this Court’s opinion on direct
appeal, and the PCRA court’s opinion; the record supports PCRA counsel’s
analysis that either Moody had waived his claims or they lacked merit. We
will not find PCRA counsel ineffective for failing to pursue claims that are
lacking in merit or failing to file an amended PCRA petition based on those
claims. See Bickerstaff, supra at 992. Moody’s final claim does not merit
relief.
As Moody’s claims are meritless, we affirm the denial of his PCRA
petition without an evidentiary hearing.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/19/19
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