Com. v. Moore, T.
Opinion
J-S01033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : THOMAS G. MOORE : : Appellant : No. 1035 MDA 2017
Appeal from the PCRA Order May 30, 2017 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000238-2015
BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 06, 2018
Appellant, Thomas G. Moore, appeals pro se from the order entered in
the Lancaster County Court of Common Pleas, which denied and dismissed
his petition filed under the Post-Conviction Relief Act (“PCRA”) at 42
Pa.C.S.A. §§ 9541-9546. We affirm.
In its opinion, the PCRA court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issues on appeal:
WAS…APPELLANT COERCED INTO ENTERING AN UNLAWFULLY INDUCED GUILTY PLEA BY THE TRIAL COURT?
WAS TRIAL COUNSEL INEFFECTIVE FOR ALLOWING AND COERCING APPELLANT TO ACCEPT AN INVOLUNTARY GUILTY PLEA AND FOR WITHHOLDING EXCULPA[TORY] EVIDENCE FROM APPELLANT? J-S01033-18
(Appellant’s Brief at 5, unpaginated).
Our standard of review of a grant or denial of a PCRA petition is limited
to examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Wholaver, ___ A.3d ___, 2018 WL 359368 *4 (filed
January 11, 2018). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Ward-Green, 141 A.3d 527 (Pa.Super. 2016). We
exercise de novo review over the PCRA court’s legal conclusions. Id. A
petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA
court can decline to hold a hearing if there is no genuine issue concerning
any material fact, the petitioner is not entitled to PCRA relief, and no
purpose would be served by any further proceedings. Commonwealth v.
Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (citing Commonwealth v.
Hardcastle, 549 Pa. 450, 701 A.2d 541 (1997)).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the reasoned opinion of the Honorable David L.
Ashworth, we conclude Appellant’s issues merit no relief. The PCRA court
opinion comprehensively discusses and properly disposes of the questions
presented. (See PCRA Court Opinion, filed May 30, 2017, at 14-27)
(finding: (1-2) plea court conducted lengthy inquiry at oral guilty plea
colloquy on record; court advised Appellant of charges against him and
-2- J-S01033-18
explained elements of those offenses; court also advised Appellant that he
was waiving his right to jury trial and presumption of innocence; Appellant
acknowledged he understood his rights, and it was his choice to plead guilty;
during colloquy, court also reviewed maximum sentences and sentencing
guidelines for each charge; Appellant stated he understood his maximum
sentence; Commonwealth summarized on record factual basis for Appellant’s
guilty plea; Appellant admitted facts Commonwealth recited; Appellant
signed written guilty plea colloquy; at oral colloquy, Appellant indicated he
had reviewed written plea colloquy with counsel and had no questions for
counsel or court regarding written plea colloquy; record establishes
Appellant knowingly, voluntarily, and intelligently entered guilty plea; record
belies Appellant’s claim that despite colloquies, plea counsel induced
Appellant to plead guilty by telling him if he proceeded to trial, he would
receive death penalty and would not hold his child again; at guilty plea
hearing, Appellant swore he had decided to plead guilty of his own volition
and no promises, threats, or guarantees had been made to or against him to
force his guilty plea; under terms of negotiated plea, Commonwealth agreed
it would not seek death penalty and would nolle pros two other charges in
exchange for plea; Appellant’s responses at oral guilty plea colloquy made
clear that he pled guilty to avoid possibility of death penalty; Appellant
gained substantial benefit through guilty plea because he eliminated very
real potential for death penalty as well as convictions and sentences on two
-3- J-S01033-18
other charges; finally, threat of death penalty is not illegal inducement of
guilty plea; Appellant’s claim plea counsel was ineffective for failing to
provide defense and exculpatory evidence in discovery is waived, because
this ineffectiveness claim does not impact validity of Appellant’s guilty plea;
even if ineffectiveness issue were properly before court, Appellant failed to
suggest any defense that plea counsel ignored; mental health defense was
not viable because, at guilty plea hearing, Appellant admitted he had not
been treated for mental illness and could read, write, and understand
English language). Accordingly, we affirm based on the PCRA court opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 02/06/2018
-4- Circulated 01/25/2018 02:47 PM
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
v. No. 0238 - 2015
THOMAS GREGORY MOORE
OPINION ,- ,......, l:> :z =-J ('j � J> :r:�:, BY: ASHWORTH, J., MAY 30, 2017 Cf> -...: � W CJ fTl co C> ..,
Before the Court is the pro se petition of Defendant Thomas Gregory Mo� fi� :z - g :;J.) --1 •• -1 pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Moore?}! (./) -0 :t> pleaded guilty on February 5, 2016, to the murder of Nicole Mathewson in exchange for
the Commonwealth's agreement to withdraw the notice of aggravating circumstances to
support the death penalty, and to dismiss certain other charges. He received a life
sentence for murder in the first degree to be followed by a consecutive sentence of 20
to 40 years' incarceration on the remaining five related offenses. For the reasons set
forth below, Moore's prose PCRA petition will be dismissed without a hearing.1
I. Background
The relevant facts and the procedural history of this case may be summarized as
follows.2 On Monday, December 15, 2014, at approximately 9:10 a.m., Mathewson, a
1 Under Rule 907 of the Pennsylvania Rules of Criminal Procedure, a PCRA court may dispose of post conviction collateral relief petitions without a hearing if it is satisfied after reviewing the materials submitted that no genuine issues of material fact exist and that the petitioner is not entitled to post conviction relief. 2 1 am adopting in toio the factual history set forth in my opinion of November 3, 2016, filed in the companion case of Commonwealth v. Rutter at Information No. 0287-2015, which disposed of that defendant's post-sentence motion to modify sentence. The Rutter transcripts,
3/ 32-year-old elementary school teacher, was found dead on her living room floor at 710
North Franklin Street in the City of Lancaster. (Rutter Nov. 3, 2016 Slip op. at 1.) Later
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J-S01033-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA Appellee : : v. : : THOMAS G. MOORE : : Appellant : No. 1035 MDA 2017
Appeal from the PCRA Order May 30, 2017 In the Court of Common Pleas of Lancaster County Criminal Division at No(s): CP-36-CR-0000238-2015
BEFORE: GANTMAN, P.J., MURRAY, J., and MUSMANNO, J.
MEMORANDUM BY GANTMAN, P.J.: FILED FEBRUARY 06, 2018
Appellant, Thomas G. Moore, appeals pro se from the order entered in
the Lancaster County Court of Common Pleas, which denied and dismissed
his petition filed under the Post-Conviction Relief Act (“PCRA”) at 42
Pa.C.S.A. §§ 9541-9546. We affirm.
In its opinion, the PCRA court fully and correctly set forth the relevant
facts and procedural history of this case. Therefore, we have no reason to
restate them.
Appellant raises the following issues on appeal:
WAS…APPELLANT COERCED INTO ENTERING AN UNLAWFULLY INDUCED GUILTY PLEA BY THE TRIAL COURT?
WAS TRIAL COUNSEL INEFFECTIVE FOR ALLOWING AND COERCING APPELLANT TO ACCEPT AN INVOLUNTARY GUILTY PLEA AND FOR WITHHOLDING EXCULPA[TORY] EVIDENCE FROM APPELLANT? J-S01033-18
(Appellant’s Brief at 5, unpaginated).
Our standard of review of a grant or denial of a PCRA petition is limited
to examining whether the evidence of record supports the court’s
determination and whether its decision is free of legal error.
Commonwealth v. Wholaver, ___ A.3d ___, 2018 WL 359368 *4 (filed
January 11, 2018). This Court grants great deference to the findings of the
PCRA court if the record contains any support for those findings.
Commonwealth v. Ward-Green, 141 A.3d 527 (Pa.Super. 2016). We
exercise de novo review over the PCRA court’s legal conclusions. Id. A
petitioner is not entitled to a PCRA hearing as a matter of right; the PCRA
court can decline to hold a hearing if there is no genuine issue concerning
any material fact, the petitioner is not entitled to PCRA relief, and no
purpose would be served by any further proceedings. Commonwealth v.
Wah, 42 A.3d 335, 338 (Pa.Super. 2012) (citing Commonwealth v.
Hardcastle, 549 Pa. 450, 701 A.2d 541 (1997)).
After a thorough review of the record, the briefs of the parties, the
applicable law, and the reasoned opinion of the Honorable David L.
Ashworth, we conclude Appellant’s issues merit no relief. The PCRA court
opinion comprehensively discusses and properly disposes of the questions
presented. (See PCRA Court Opinion, filed May 30, 2017, at 14-27)
(finding: (1-2) plea court conducted lengthy inquiry at oral guilty plea
colloquy on record; court advised Appellant of charges against him and
-2- J-S01033-18
explained elements of those offenses; court also advised Appellant that he
was waiving his right to jury trial and presumption of innocence; Appellant
acknowledged he understood his rights, and it was his choice to plead guilty;
during colloquy, court also reviewed maximum sentences and sentencing
guidelines for each charge; Appellant stated he understood his maximum
sentence; Commonwealth summarized on record factual basis for Appellant’s
guilty plea; Appellant admitted facts Commonwealth recited; Appellant
signed written guilty plea colloquy; at oral colloquy, Appellant indicated he
had reviewed written plea colloquy with counsel and had no questions for
counsel or court regarding written plea colloquy; record establishes
Appellant knowingly, voluntarily, and intelligently entered guilty plea; record
belies Appellant’s claim that despite colloquies, plea counsel induced
Appellant to plead guilty by telling him if he proceeded to trial, he would
receive death penalty and would not hold his child again; at guilty plea
hearing, Appellant swore he had decided to plead guilty of his own volition
and no promises, threats, or guarantees had been made to or against him to
force his guilty plea; under terms of negotiated plea, Commonwealth agreed
it would not seek death penalty and would nolle pros two other charges in
exchange for plea; Appellant’s responses at oral guilty plea colloquy made
clear that he pled guilty to avoid possibility of death penalty; Appellant
gained substantial benefit through guilty plea because he eliminated very
real potential for death penalty as well as convictions and sentences on two
-3- J-S01033-18
other charges; finally, threat of death penalty is not illegal inducement of
guilty plea; Appellant’s claim plea counsel was ineffective for failing to
provide defense and exculpatory evidence in discovery is waived, because
this ineffectiveness claim does not impact validity of Appellant’s guilty plea;
even if ineffectiveness issue were properly before court, Appellant failed to
suggest any defense that plea counsel ignored; mental health defense was
not viable because, at guilty plea hearing, Appellant admitted he had not
been treated for mental illness and could read, write, and understand
English language). Accordingly, we affirm based on the PCRA court opinion.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq. Prothonotary
Date: 02/06/2018
-4- Circulated 01/25/2018 02:47 PM
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL
COMMONWEALTH OF PENNSYLVANIA
v. No. 0238 - 2015
THOMAS GREGORY MOORE
OPINION ,- ,......, l:> :z =-J ('j � J> :r:�:, BY: ASHWORTH, J., MAY 30, 2017 Cf> -...: � W CJ fTl co C> ..,
Before the Court is the pro se petition of Defendant Thomas Gregory Mo� fi� :z - g :;J.) --1 •• -1 pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46. Moore?}! (./) -0 :t> pleaded guilty on February 5, 2016, to the murder of Nicole Mathewson in exchange for
the Commonwealth's agreement to withdraw the notice of aggravating circumstances to
support the death penalty, and to dismiss certain other charges. He received a life
sentence for murder in the first degree to be followed by a consecutive sentence of 20
to 40 years' incarceration on the remaining five related offenses. For the reasons set
forth below, Moore's prose PCRA petition will be dismissed without a hearing.1
I. Background
The relevant facts and the procedural history of this case may be summarized as
follows.2 On Monday, December 15, 2014, at approximately 9:10 a.m., Mathewson, a
1 Under Rule 907 of the Pennsylvania Rules of Criminal Procedure, a PCRA court may dispose of post conviction collateral relief petitions without a hearing if it is satisfied after reviewing the materials submitted that no genuine issues of material fact exist and that the petitioner is not entitled to post conviction relief. 2 1 am adopting in toio the factual history set forth in my opinion of November 3, 2016, filed in the companion case of Commonwealth v. Rutter at Information No. 0287-2015, which disposed of that defendant's post-sentence motion to modify sentence. The Rutter transcripts,
3/ 32-year-old elementary school teacher, was found dead on her living room floor at 710
North Franklin Street in the City of Lancaster. (Rutter Nov. 3, 2016 Slip op. at 1.) Later
that same day, the Lancaster City Bureau of Police received information that Marcus
Rutter, who was then 16 years old, was in possession of an iPhone which appeared to
have belonged to Mathewson. (Id.) Police went to Rutter's residence located at 730D
East Marion Street in the City of Lancaster and spoke with his mother, Sherry Mount,
and step-father, Brendon Mount, who also resided there. (Id. at 1-2.) After a consent
to search was received from Rutter's parents, police seized an iPhone, iPad and laptop
computer which they believed had been stolen from the home of Mathewson. (Id. at 2.)
Shortly thereafter, at approximately 10:00 p.m. on December 15, 2014, Rutter
was taken into custody near his home for possession of stolen property. (Rutter Nov. 3,
2016 Slip op. at 2.) After signing a Miranda Warnings waiver, and in the presence of
his mother, Rutter told the police that he and Moore had entered Mathewson's garage
and home in the early morning hours of December 15, 2014. They took several items
that belonged to Mathewson, including her car, Phone, iPad and laptop. Later, they
returned to her home to take more items. It was during this second illegal entry that
Mathewson was killed.3 (Id.)
exhibits, and pleadings from which the facts were culled have not been made a part of Moore's official file. Therefore, I have cited only to my November 3, 2016 slip opinion and have not included specific references to the Rutter record.
3 Rutter was charged as a co-conspirator and entered an open guilty plea on July 11, 2016, to the charges of homicide, burglary, conspiracy, robbery, theft by unlawful taking, and access device fraud in exchange for the Commonwealth's agreement to dismiss the charges of theft by unlawful taking and involuntary deviate sexual intercourse, and to replace the charge of criminal conspiracy to commit burglary with conspiracy to commit murder. It was further agreed that a sentence of life without parole would not be imposed; however, the sentence on each count was to be served consecutively to one another. On July 29, 2016, Rutter was sentenced
2 From the record, developed at the Rutter pre-trial motions hearing, guilty plea
proceeding and sentencing hearing, the following time line has been reconstructed.
Sometime between 1: 15 and 3:20 a. m. on the morning of December 15, 2014, Rutter
and Moore walked from Rutter's home on East Marion Street to North Franklin Street,
illegally entered the home of Nicole Mathewson, and took several items that belonged
to Mathewson, including her iPad and laptop. (Rutter Nov. 3, 2016 Slip op. at 3.) The
perpetrators also entered Mathewson's garage and stole her vehicle. Video evidence4
captured Moore driving Mathewson's vehicle south on North Franklin Street at 3:22
a.m. with Rutter in the front passenger seat. They crossed over New Holland Avenue
and continued straight on North Franklin Street to the 700 block of East Marion Street.
(Id.)
Moore parked Mathewson's car near Rutter's home and they waited for Rutter's
mother to leave the house for work. Sherry Mount told the police that she sent her son
a message on Facebook at 3:35 a.m., asking where he was. (Rutter Nov. 3, 2016 Slip
to an aggregate term of 54 to 109 years' incarceration. For the offense of first degree murder, Rutter, as a juvenile, was sentenced to the mandatory minimum term of imprisonment of not less than 35 years nor more than 70 years. The following consecutive sentences were imposed for the remaining charges: 10 to 20 years' incarceration for conspiracy to commit murder; 5-1/2 to 11 years' incarceration for robbery; 2 to 4 years' incarceration for burglary; 9 to 24 months' incarceration for receiving stolen property; and 9 to 24 months' incarceration for access device fraud. (Rutter Nov. 3, 2016 Slip op. at 14-16.) Rutter filed a direct appeal to the Superior Court from his judgment of sentence of July 29, 2016, as finalized by the denial of his post sentence motion on November 3, 2016. See 1995 MDA 2016. That appeal is presently pending. 4 The video evidence in this case was captured by the Lancaster Safety Coalition surveillance cameras, as well as private surveillance cameras at neighborhood businesses, including Turkey Hill, Adprints, Dolly's Laundry and Custom Hot Whips. (Rutter Nov. 3, 2016 Slip op. at 3 n.2.) The following note appears on the video timeline prepared by the Commonwealth: "Time stamps not calibrated between cameras from various systems. The mentioned time stamps are from each individual system and are an approximate time." (Id.) Some time stamps are off as much as four minutes. (Id.)
3 op. at 3.) When she received no response, she messaged him again at 3:39 a.m.
telling him "that he better get up for a full day of school." (Id.) Again, she received no
response. Mrs. Mount left the house and walked to work sometime between 3:40 and
3:50 a.m. (Id.)
After observing his mother leave for work, Rutter entered the home and dropped
off Mathewson's iPad and laptop in his room. (Rutter Nov. 3, 2016 Slip op. at 4.) At
approximately 4:22 a.m., Rutter and Moore are seen on camera walking north on North
Franklin Street, across New Holland Avenue, and entering the alley behind
Mathewson's residence. (Id.)
Rutter and Moore reentered the rear of the house at 710 North Franklin Street
and Mathewson, who was in her second floor bedroom, was awakened after hearing
noises downstairs. (Rutter Nov. 3, 2016 Slip op. at 4.) She was confronted by Rutter
and Moore on the second floor of her home and retreated back into her bedroom. The
intruders forced their way into her bedroom and bound Mathewson's hands behind her
back with an extension cord. It was while Mathewson was bound upstairs in her
bedroom that the PIN number for her bank card was obtained from her, and entered
and saved in the "note" section of her iPhone at 4:57 a.m. (Id.)
Rutter stayed with the victim in her home while Moore removed Mathewson's
bicycle from the garage, rode to where her vehicle had earlier been left on East Marion
Street, drove the vehicle back to the Franklin Street house and re-parked it in the
garage. This is confirmed by security camera footage showing Moore riding
Mathewson's bicycle, at approximately 5:00 a.m., from the alleyway behind her house
onto Reynolds Avenue, then south on North Franklin Street in the direction of Rutter's
4 house. (Rutter Nov. 3, 2016 Slip op. at 4-5.) The bicycle, and the milk crate and
bungee cords that had been attached to Mathewson's bicycle, were later found
discarded next to Rutter's residence at 7300 East Marion Street. Minutes later, the
victim's car, which had been parked near Rutter's home, is seen coming out of
Burrowes Avenue onto North Franklin Street and travels behind the victim's house.
Moore parked the car in the garage and took off on foot. (Id.)
At approximately 5:10 a.m., Moore is seen walking from Reynolds Avenue onto
North Franklin Street to the Turkey Hill on New Holland Avenue. (Rutter Nov. 3, 2016
Slip op. at 5.) Moore is caught on camera withdrawing $500 from Mathewson's bank
account from the Turkey Hill ATM at approximately 5: 18 a.m. Moore is next observed
on camera running on New Holland Avenue to North Franklin Street at 5:25 a.m. (Id.)
Moore split Mathewson's money with Rutter when he returned to Mathewson's house.
(Id. at 5-6.)
Over the next 55 minutes, Nicole Mathewson was brutally murdered. Rutter
explained to the police that Mathewson had to be killed because she had seen Moore's
face.5 (Rutter Nov. 3, 2016 Slip op. at 6.) The "Scene Reconstruction" from the
Lancaster County Forensic Unit Bloodstain Pattern Analysis Report prepared by
Detective Scott Eelman detailed the initial assault on Mathewson in her bedroom:
The site of the initial bloodletting event is the second floor east bedroom. The height of the bloodstains, none of which were higher than 36 inches, indicates that the victim was on or near the floor at the time of the bloodletting events. The impact spatter patterns in different directions
5 Rutter, on the other hand, claimed to be wearing a mask. (Rutter Nov. 3, 2016 Slip op. at 6 n.3) A mask was found in Mathewson's car and DNA analysis confirmed that Rutter had in fact worn the mask. (Id.)
5 indicate that there were a minimum of seven blows. Based on the type of injuries to her head and the impact spatter, the blows were created with a larger blunt or dull edged item. The pillow found in the hallway was initially under the victim's head at the time of the blows. Based upon the impact spatter patterns and the void patterns, at least one of the actor(s) stood on the south side of the area rug as the blows were inflicted .... "
(Id.) Rutter identified the weapon used on Mathewson as a shovel." (Id.)
Detective Eelman further reconstructed the scene as the assault moved from the
second floor bedroom to the first floor living room:
[Mathewson) was then dragged from the east bedroom feet first down the hallway and laid at the top of the steps. This can be deduced from the wipe pattern of the blood soaked hair and the lack of footwear impressions in the wipe patterns across the second floor hallway. The pooling bloodstain in that area indicates a lack of movement and continued bleeding for a period of time.
The actor(s) then dragged or pushed her down the stairs causing her head to move from one side of the stairs to the other as she traveled down the stairs. This can be deduced by the wipe patterns created by the bloody hair contacting the south wall at the top of the steps, the wipe patterns created by the bloody hair contacting the north wall of the stairway about 5 stairs from the top and wipe patterns created by the bloody hair making contact with the south wall of the stairway approximately 5 stairs from the bottom. At the bottom, she either struck the bottom of the stairs with her lower half causing the upper half to rotate against the south wall or she was sat upright by the actor(s) and pushed over to get her away from the stairs. This can be deduced by the wipe bloodstain pattern and large volume blood- stain patterns against the south wall at the bottom of the stairs and the arc pattern of movement in the bloodstains.
6 The shovel was never recovered. Moore told the police that the shovel, which had been broken into two pieces, was picked up by him at the bottom of the steps, placed by him in a white plastic trash bag which he found in a linen closet on the second floor, put in the trunk of Mathewson's car, and ultimately thrown in a dumpster at Sterling Place Apartments. Moore described the shovel for police as being three feet long and having "a handle like the type that would be on a sword" with the end being square metal. (Rutter Nov. 3, 2016 Slip op. at 6 n.4.)
6 The victim lay on the floor bleeding from open wounds in the area of the bottom of the stairs. This is evident by the large volume of pooling blood in the area of the bottom of the stairs. The victim was dragged across the living room floor to the area of the radiator on the east wall. This is evident from the wipe and swipe stains to the area of pooling at the bottom of the stairs. She was leaned against the radiator and was then moved in a clockwise direction across the floor while continuing to bleed from the wounds to her head. She was again moved to her final rest position most likely by rotating her body. This was evident from the wipe and swipe stains in the area of the larger pooled bloodstain. There were further blows that occurred in this area to include impact spatter under the end table next to the couch. The victim lay here with continuing blood flow from the open wounds.
(Rutter Nov. 3, 2016 Slip op. at 7.) Once at the bottom of the stairs, Mathewson was
tied to the banister and choked with an extension cord, a belt, and a scarf. (Id. at 7-8.)
She was finally stabbed in the back multiple times. (Id. at 8.)
The Postmortem Report prepared by Wayne K. Ross, M.D., Forensic
Pathologist, described Mathewson's injuries:
There is evidence of multiple strikes to her head and body due to shovel impact, and multiple stab wounds secondary to being stabbed with a knife. Although there are multiple stab wounds and there is evidence of hemorrhage in these areas, the knife does not penetrate into the vertebral column of the neck nor does it penetrate into the chest. The stab wound paths are front to back or back to front and extended through the subcutaneous fat and musculature. They are all within 1 inch or so. The bruises to the back are compatible with blunt force trauma to that region. The bruises to the heart and liver are compatible with significant chest compression including suffocation. The abrasion pattern to the front of the neck is indicative of ligature strangulation. The bruises to the hyoid bone and thyroid cartilage and the left carotid artery indicate severe compression forces leading to strangulation. The cuts to the right side of the neck indicate multiple cuts to that area. The impacts to the head resulted in multiple fractures including a large curvilinear fracture that extends from the left side of the head to the right side of the head along the base of the skull. In addition, there are comminuted fractures noted to the right posterior skull. Contusions are observed directly underneath this area - to the brain -
7 indicating severe penetrating force one to the brain itself. There is evidence of bleeding on or about the brain including subdural blood due to deceleration injuries or other. The lacerations to the scalp and/or other blunt force impacts such as being pulled down the stairs can cause and/or contribute to the bleeding to the brain.
There are multiple ligatures around the neck. The abrasion pattern is consistent with that from the scarf and/or the electrical cord/other wrapped around her neck. There is also evidence of deep hemorrhage in the neck indicating that she was alive when she was being strangled. This also goes hand in hand with the protruding tongue, the bite mark to the tongue and hemorrhages around the end of the tongue which indicate she is alive and strangled during this time period. The lacerations to her anus, which were photographed and put in cassettes, indicate that she was penetrated ....
Bloodstains are identified throughout the house and indicate that she was assaulted in the bedroom, dragged down the stairs and then continually assaulted in these downstairs rooms ....
(Rutter Nov. 3, 2016 Slip op. at 8-9.)
After inflicting these fatal injuries upon Nicole Mathewson, Rutter and Moore fled
the scene in her car. At approximately 6:21 a.m. Mathewson's car was seen on camera
traveling south on North Franklin Street, crossing over New Holland Avenue, in the
direction of East Marion Street. (Rutter Nov. 3, 2016 Slip op. at 9.) Rutter was then
dropped off at his home by Moore at approximately 6:27 a.m., and Moore proceeded to
the Sterling Place Apartments, where Mathewson's vehicle was abandoned. (Id.)
Once home, Rutter Facebook-messaged Moore, took a shower, and went to
school with the victim's iPhone to sell. (Rutter Nov. 3, 2016 Slip op. at 9.) At
approximately 9:10 a.m., Nicole Mathewson's boyfriend arrived at her home, entered
the front door and found the victim nonresponsive.7 The police were notified and
Mathewson's boyfriend received a telephone call from Mathewson's principal who was 7
concerned for her because she had not arrived at the Brownstown Elementary School where she worked. (Rutter Nov. 3, 2016 Slip op. at 10 n.7)
8 arrived on the scene shortly thereafter, along with medical personnel and the Fire
Department. Mathewson was pronounced dead at the scene. (Id. at 10.)
Throughout the school day, Rutter and Moore traded Facebook messages to
each other about selling the iPhone, what's going to happen with the stolen car, and
buying marijuana. (Rutter Nov. 3, 2016 Slip op. at 10.) After school at approximately
3: 51 p.m., Rutter Facebook-messaged Moore asking "if the time is up and can [you]
grab more bread," an apparent reference to checking whether the ATM card belonging
to Mathewson could be used to withdraw more money from her account. Rutter went
home briefly at 5:30 p.m. and hid Mathewson's iPhone in his bedroom before going
back to Mccaskey. Rutter then attended a basketball game at the high school at 7:00
p.m., where he conversed with Moore over Facebook regarding the police finding the
body. (Id.)
Later that evening, the Lancaster City Police received information from a
Mccaskey High School student that Rutter was in possession of an iPhone which
appeared to have belonged to Mathewson. (Rutter Nov. 3, 2016 Slip op. at 11.)
Around 9:00 p.m., police went to Rutter's residence and, after a consent to search was
received from Rutter's parents, police seized an iPhone, iPad and laptop computer
belonging to Mathewson which had been hidden in Rutter's bedroom. (Id.)
Shortly thereafter, at approximately 10:00 p. m. on December 15, 2014, as he
was walking home from McCaskey High School, Rutter was arrested for possession of
stolen property. (Rutter Nov. 3, 2016 Slip op. at 11.) At the police station, Rutter's
belongings were inventoried. Among the things found on his person was approximately
$230 - what was left of his half of the $500 taken from Mathewson's account after
9 having paid for admission to the basketball game and having bought some food. (ld.)
After signing a Miranda Warnings waiver, and in the presence of his mother, Rutter
gave a video and audio recorded statement to the police in which he admitted to
conspiring with Moore to burglarize Mathewson's home, steal her belongings, unlawfully
access her bank account, and ultimately kill her. (Id.)
On December 16, 2014, the police located the victim's vehicle in the parking lot
at Sterling Place Apartments. The same day, Moore was arrested inside an apartment
there on a receiving stolen property warrant. At the police station, Moore's clothing was
removed and blood was observed on his sweat pants. (Moore Booking Report.)
The next day, Moore was charged with criminal homicide, involuntary deviate sexual
intercourse,8 burglary, criminal conspiracy to commit burglary, robbery, access device
fraud, receiving stolen property, and theft by unlawful taking.9
Moore made a knowing, voluntary and intelligent waiver of his right to a
preliminary hearing on January 9, 2015 (see Waiver of Preliminary Hearing signed by
Moore), and met with the police later that afternoon for an interview. After signing a
Miranda Warnings waiver, and in the presence of his attorney, Moore gave a video and
audio recorded statement to the police in which he admitted to his participation with
Rutter in burglarizing Mathewson's home, stealing her belongings, and unlawfully
accessing her bank account. He denied any responsibility for Mathewson's death,
8The forensic evidence established that the victim had been anally penetrated by force.
(See Moore Criminal Complaint, Affidavit of Probable Cause atff 8.)
918 Pa.C.S.A. § 2501(a), 18 Pa.C.S.A. § 3502(a)(1), 18 Pa.C.S.A. § 903, 18 Pa.C.S.A. § 3701 (a)(1 )(iv), 18 Pa.C.S.A. § 4106(a)(1 )(i), 18 Pa.C.S.A. § 3925(a), 18 Pa.C.S.A. § 3123(a)(1), and 18 Pa.C.S.A. § 3921(a), respectively.
10 although he acknowledged that she was still alive when he entered the home the last
time, and he failed to take any action to help her. (Moore Police Interview at 3-14.)
Pursuant to Rule 802 of the Pennsylvania Rules of Criminal Procedure, the
Commonwealth filed a Notice of Intent to Seek a Sentence of Death against Moore on
January 30, 2015. Specifically, the Commonwealth believed it could prove two
statutory aggravating circumstances: (1) a killing while in the perpetration of three
felonies, namely involuntary deviate sexual intercourse, burglary and robbery, 42
Pa.C.S.A. §§ 9711 (d)(6); and (2) the killing was committed by means of torture. 42
Pa.C.S.A. §§ 9711(d)(8). On February 6, 2015, the Commonwealth gave notice
pursuant to Pa.R.Crim.P. 582(b)(1) of its intent to consolidate the cases of Rutter and
Moore for trial.
On September 28, 2015, Moore filed an Omnibus Pre-Trial Motion which
included, inter alia, a motion to continue trial, which was then scheduled for January 11,
2016. Following a conference with counsel, trial was rescheduled to April 12, 2016.
On January 11, 2016, Moore filed a motion to sever his case from his juvenile co-
defendant, Rutter.
In exchange for the Commonwealth dropping the death penalty, on February 5,
2016, Moore agreed to enter a plea of guilty to the charges of first degree murder,
burglary, criminal conspiracy, robbery, receiving stolen property, and access device
fraud. (N.T., Moore Guilty Plea/Sentencing at 2-3.) The receiving stolen property" and
involuntary deviate sexual intercourse charges were no/le prossed as part of the
10 This charge related to the victim's automobile. (See Information at Count 6.) 11 negotiated plea agreement. (Id. at 3.) The proffered negotiated plea was accepted
after a thorough on-the-record colloquy established that Moore was entering the plea
knowingly, voluntarily and intelligently. (Id. at 35, 54.)
In accordance with the plea agreement, the Court imposed a mandatory
sentence of life without the possibility of parole on the first degree murder conviction.11
(N.T., Moore Guilty Plea/Sentencing at 54.) The Court further ordered the following
consecutive sentences as per the negotiated plea agreement: (1) 5 to 10 years'
incarceration on the burglary conviction; (2) 5 to 10 years' incarceration on the criminal
conspiracy conviction; and (3) 1 O to 20 years' incarceration on the robbery conviction.
(Id. at 54-55.) Finally, concurrent sentences of one to two years' incarceration were
imposed on the theft by unlawful deception. conviction and access device fraud
convictions. (Id. at 55.) Accordingly, the aggregate sentence is life in prison without the
possibility of parole, with a consecutive period of incarceration of 20 to 40 years.
Restitution was ordered in the amount of $38,566.77, to be amended for the costs of
ongoing counseling for the victim's family members. (Id.) Moore's sentence also
included fines and costs associated with each count. (Id. at 2.)
At the conclusion of the guilty plea/sentencing hearing, I reviewed with Moore his
rights to file post sentence motions within 1 O days and a direct appeal to the Superior
Court of Pennsylvania within 30 days. (N.T., Moore Guilty Plea/Sentencing at 57.)
Moore's post sentence rights were also set forth in the seven-page written colloquy
11 Pennsylvania law mandates that if a person is found guilty of first degree murder and does not receive the death penalty he or she will receive a sentence of life imprisonment without the possibility of parole. See 18 Pa.C.S.A. § 1102(a)(1). (N.T., Moore Guilty Plea/ Sentencing at 23.) 12 form signed by Moore. ( See Moore Guilty Plea Colloquy and Post-Sentence Rights at
1l1l 55-75.) Moore filed no post sentence motions, nor did he file a direct appeal to the Superior Court of Pennsylvania from his judgment of sentence imposed on February 5,
2016. Moore was represented at his guilty plea and sentencing by court-appointed
counsel, Jeffrey A. Conrad, Esquire, and Edwin G. Pfursich, IV, Esquire.
On January 31, 2017, 12 Moore, acting prose, filed the instant timely petition for
post conviction collateral relief, 13 challenging 'his attorney's effectiveness and the
alleged unlawful inducement of his guilty plea. ( See Pro Se PCRA Petition at 1l 10.)
Pursuant to Rule 904(A) of the Pennsylvania Rules of Criminal Procedure, Randall L.
Miller, Esquire, was appointed to represent Moore on his collateral claims and was
granted leave to file an amended petition, if appropriate.
After a careful and conscientious review of the entire record, Attorney Miller
concluded that the prose petition did not present any issues of arguable merit and was
frivolous as a matter of law. Accordingly, he submitted a "no merit" letter14 and request
to withdraw on April 24, 2017.
After reviewing the prose PCRA petition and counsel's "no merit letter," I found
that there were no disputed issues of fact, Moore was not entitled to post conviction
12 The pleading is deemed filed on the date of mailing, January 31, 2017, rather than the date of docketing, February 9, 2017, pursuant to the "prisoner mailbox rule." See Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super. 2011) ("Under the prisoner mailbox rule, we deem a pro se document filed on the date it is placed in the hands of prison authorities for mailing."). 13 note that Moore's PCRA petition was filed within one year of the date his judgment 1 became final. As such, his petition was filed in a timely manner. See 42 Pa.C.S.A. § 9545(b).
14 This was filed pursuant to Commonwealth v. Turner, 518 Pa. 491, 544 A.2d 927 (1988), and Commonwealth v. Finley, 379 Pa. Super. 390, 550 A.2d 213 (1988).
13 collateral relief, and no purpose would be served by any further proceedings.
Therefore, on April 25, 2017, pursuant to Pa.R.Crim.P. 907(1), I filed a notice of my
intention to dismiss the prose PCRA petition without a hearing. Moore was given 30
days to file an amended petition or to otherwise respond to the Court's Notice. He
submitted a timely response on May 25, 2017. This matter is now ripe for disposition.
II. Eligibility for PCRA Relief
Initially, I note that "[t]he entry of a guilty plea constitutes a waiver of all defenses
and defects except claims of lack of jurisdiction, invalid guilty plea, and illegal
sentence." Commonwealth v. Kennedy, 868 A.2d 582, 593 (Pa. Super. 2005). Moore
has not challenged the jurisdiction of this Court or the legality of his sentence. Moore
does dispute, however, the validity of his guilty plea. In such a case, post conviction
relief is available if a petitioner pleads and proves by a preponderance of the evidence
that his guilty plea was unlawfully induced where the circumstances made it likely the
inducement caused the petitioner to plead guilty and the petitioner is innocent. See 42
Pa.C.S.A. § 9543(a)(2)(iii).15
While a defendant is entitled to effective representation during the plea process,
Commonwealth v. Bedell, 954 A.2d 1209, 1212 (Pa. Super. 2008), allegations of
ineffectiveness in connection with the entry of a guilty plea will serve as a basis for relief
only if the ineffectiveness caused the defendant to enter an involuntary or unknowing
15 Since Moore pleaded guilty, the truth-determining process is not implicated under 42 Pa.C.S.A. § 9543(a)(2)(ii). Rather, his ineffectiveness claim in the context of an attack on the validity of his guilty plea falls under§ 9543(a)(2)(iii).
14 plea. Commonwealth v. Wah, 42 A.3d 335, 338-39 (Pa. Super. 2012) (citations and
quotation marks omitted). This is similar to the "manifest injustice" standard used when
evaluating a motion to withdraw a plea after sentencing. Bedell, supra. "The law does
not require that [the defendant] be pleased with the outcome of his decision to enter a
plea of guilty; rather '[a]II that is required is that [the defendant's] decision to plead guilty
be knowingly, voluntarily and intelligently made."' Commonwealth v. Brown, 48 A.3d
1275, 1277 (Pa. Super. 2012) (citation omitted). Once a defendant enters a guilty plea,
it is presumed he was aware of his actions and, thus, the burden of demonstrating
involuntariness is upon him. Commonwealth v. Willis, 68 A.3d 997, 1002 (Pa. Super.
2013).
In determining whether a defendant entered into a plea of guilty knowingly,
voluntarily and intelligently, the PCRA court "is free to consider the totality of the
circumstances surrounding the plea, ... including, but not limited to, transcripts from
other proceedings, 'off-the-record' communications with counsel, and written plea
agreements." Commonwealth v. Allen, 557 Pa. 135, 146-47, 732 A.2d 582, 588-89
(1999). Moreover, "[a] defendant is bound by the statements made during the plea
colloquy, and a defendant may not later offer reasons for withdrawing the plea that
contradict statements made when he pied." Brown, supra.
To succeed in showing prejudice for a claim of ineffectiveness in connection with
a guilty plea, the defendant "must show that it is reasonably probable that, but for
counsel's errors, he would not have pleaded guilty and would have gone to trial."
Commonwealth v. Hickman, 799 A.2d 136, 141 (Pa. Super. 2002). Moreover, where
15 the defendant enters his plea on the advice of counsel, "the voluntariness of the plea
depends on whether counsel's advice was within the range of competence demanded
of attorneys in criminal cases." Id. (quoting McMann v. Richardson, 397 U.S. 759, 771
(1970)).
Here, Moore claims his trial counsel's ineffectiveness caused him to enter an
invalid plea. In support of this argument, he avers: (1) trial counsel allowed Moore to
enter into a negotiated guilty plea that was not intelligent, knowing and voluntary; (2)
Moore's guilty plea was unlawfully induced when his trial attorney, Mr. Conrad, informed
him that he may never hold his child again during a recess in the guilty plea/sentencing
hearing outside the presence of the Court; (3) trial counsel should have litigated the
issues contained in the omnibus pretrial motion; (4) trial counsel allegedly forged
Moore's signature on the waiver of arraignment form; and (5) trial counsel was
ineffective because he failed to provide Moore with a defense or exculpatory evidence
favorable to Moore. For the reasons that follow, Moore's claim of ineffective assistance
of counsel must fail.
Ill. Discussion
I begin my analysis as to the voluntary, knowing and intelligent nature of Moore's
plea by examining the totality of the circumstances surrounding the plea. The
procedure for pleas and plea agreements is set forth in Rule 590 of the Pennsylvania
Rules of Criminal Procedure. Before a judge may accept a plea of guilty, he must
determine, after inquiry of the defendant, that the plea is understandingly and
16 voluntarily tendered. Pa.R.Crim.P. 590(A)(3).16 The comment to this Rule notes, that
"at a minimum," the judge should ask the following questions in the guilty plea colloquy:
(1) Does the defendant understand the nature of the charges to which he is pleading
guilty; (2) Is there a factual basis for the plea; (3) Does the defendant understand that
he has the right to trial by jury; (4) Does the defendant understand that he is presumed
innocent until he is found guilty; (5) Is the defendant aware of the permissible range of
sentences and/or fines for the offenses charged; and (6) Is the defendant aware that
the judge is not bound by the terms of any plea agreement tendered unless the judge
accepts such agreement. Our Supreme Court has held that inquiry into these six areas
is essential to ensure a knowing, voluntary and intelligent plea. Commonwealth v.
Flanagan, 578 Pa. 587, 605, 854 A.2d 489, 500 (2004). See also Commonwealth v.
Willis, 471 Pa. 50, 51-52, 369A.2d 1189, 1189-90 (1977); Commonwealth v. Bedell,
954 A.2d 1209, 1212 (Pa. Super. 2008).
The comment to Rule 590 does allow that a determination into these areas may
be accomplished by a written colloquy that is "read, completed, signed by the
defendant, and made part of the record of the plea proceedings," supplemented by
some _on-the-record oral examination. In this case, the record establishes that I
16 Rule 590 provides in relevant part as follows: (1) Pleas shall be taken in open court. (2) A defendant may plead not guilty, guilty, or, with the consent of the judge, nolo contendere. If the defendant refuses to plead, the judge shall enter a plea of not guilty on the defendant's behalf. (3) The judge may refuse to accept a plea of guilty or nolo contendere, and shall not accept it unless the judge determines after inquiry of the defendant that the plea is voluntarily and understandingly tendered. Such inquiry shall appear on the record. Pa.R.Crim. P. 590(A).
17 conducted a lengthy and thorough inquiry into the six designated areas identified
above. I advised Moore of the charges against him and explained the elements of
those offenses as defined by the Crimes Code and the Pennsylvania Standard Jury
Instructions (Criminal). (N.T., Moore Guilty Plea/Sentencing at 19-26.) Moore was also
advised that by pleading guilty he was waiving his rights to a jury trial, the presumption
of innocence, and other relevant attributes of procedural due process. (Id. at 5-8, 13,
19.) He acknowledged that he understood that he was innocent until proven guilty, he
did not have to plead guilty, and that it was his choice to plead guilty. (Id. at 6, 13)
The maximum sentences and sentencing guidelines for each charge were also
reviewed with Moore during the colloquy. (N.T., Moore Guilty Plea/Sentencing at 23-
28.) Moore stated that he understood that the maximum sentence, if all the charges
were sentenced consecutively, would be life without parole plus 81 years in jail, and a
fine of $130,000.00. (Id. at 27.)
As required by Pa.R.Crim.P. 590, a trial court must also satisfy itself that there is
a factual basis for the plea. Commonwealth v. Fluharty, 429 Pa. Super. 213, 219,
632 A.2d 312, 315 (1993). In the instant case, I reviewed the factual basis of the plea,
as summarized by First Assistant District Attorney Christopher Larsen. (N.T., Moore
Guilty Plea/Sentencing at 31-33.) Moore admitted to the facts recited by the prosecutor
which formed the bases for the charges; thus, defeating a claim of innocence. (Id. at
33.) There were clear admissions of guilt by Moore, as well as substantial independent
evidence of guilt. In light of the totality of the circumstances surrounding the plea in this
case, it is clear that there was a sufficient factual basis for the plea to be deemed
knowingly and voluntarily entered. For Moore to now suggest that he was unlawfully
18 induced into entering into the negotiated plea because he is innocent of the offenses to
which he pied guilty is contrary to the facts of this case.
In addition to the colloquy in open court, Moore signed a 7-page, 77-question
written guilty plea "long form" completed by defense counsel. (See Moore Guilty Plea
Colloquy.) In this document, Moore manifested his understanding of the offenses
against him, the maximum sentences and the procedural due process rights waived by
a guilty plea. He indicated that he reviewed the colloquy form with his attorney and
signed it. (Id.) Moore had no questions of his attorney or of the Court regarding the
form.
Thus, the record clearly establishes that Moore was aware of his charges (N.T.,
Moore Guilty Plea and Sentencing at 20-26), that he understood the nature of these
charges (Id.), that he was giving up his right to a jury trial and the presumption of
innocence (ld. at 5, 13), and that the murder charge carried a maximum jail term of life
without parole. (Id. at 27-28.) Moreover, Moore indicated that he knew he did not have
to plead guilty and that it was his voluntary decision to plead guilty. (See Moore Guilty
Plea Colloquy at 111110, 49.) Moore denied being forced to plead guilty, and indicated
that it was his decision to plead guilty of his own free will. (Id. at 11� 50-51.)
In the instant case, Moore was facing a grim alternative when he elected to enter
a negotiated plea to the murder charge. He faced a possible death penalty if convicted
at trial. (N.T., Moore Guilty Plea/Sentencing at 18; see also Moore Guilty Plea Colloquy
at ,i 35.) Moore had absolutely nothing to gain by a trial and much to gain by pleading.
Because of the overwhelming evidence against him, a trial was precisely what neither
Moore nor his attorney wanted. The record demonstrates that Moore voluntarily,
19 knowingly and understandingly consented to the imposition of a life sentence because
the Commonwealth had sufficient evidence (1) to convince a jury beyond a reasonable
doubt that Moore was guilty of all charges and (2) to prove the two statutory aggravating
circumstances to support the death penalty.
By the nature, extent and tone of the guilty plea hearing, this Court was well
satisfied that Attorney Conrad had fully executed his duties in advising Moore of the
nature of the charges and the possible consequences of his plea. Defense counsel
advised the Court that his client was entering a knowing, voluntary and intelligent plea.
(N.T., Moore Guilty Plea/Sentencing at 34.)
Based upon the representations by Moore, his attorney and the Commonwealth,
the negotiated guilty plea presented on Moore's behalf was accepted by the Court.
(N.T., Moore Guilty Plea/Sentencing at 35.) On review, considering all the
circumstances attendant to the plea, including the adequacy of the oral and written plea
colloquies, Moore's responses therein, and the representations by defense counsel, the
guilty plea was knowing, voluntary and intelligent, and was properly accepted.
Moore, however, claims that his guilty plea is nonetheless invalid based on the
ineffective assistance of counsel. Specifically, Moore now contends that, despite what
was said during the oral colloquy and what was specifically spelled out in the written
colloquy, it was not his intention to plead guilty and that counsel unlawfully induced him
to plead guilty by threatening that if Moore's case went to trial and he was convicted, he
would get the death penalty and would never hold his child again. (See Pro Se PCRA
Petition at ,i 15(A)(1).) The record belies this assertion.
20 At the guilty plea/sentencing hearing, Moore testified that it was his decision to
waive a jury trial and plead guilty of his own free will, and that no promises, threats or
guarantees had been made to or against him to force him to plead guilty. (N.T., Moore
Guilty Plea/Sentencing at 6, 31; see also Moore Guilty Plea Colloquy at ,r,r 49-52.) This
exchange with the Court occurred after the recess in the proceeding wherein the
alleged "threat" was made by Attorney Conrad. Thus, the only evidence suggesting
that Moore's guilty plea was induced by counsel's alleged threat is Moore's proffered
testimony, which directly contradicts his own statements made during the oral plea
colloquy and on the written colloquy.
The longstanding rule of Pennsylvania law is that a defendant may not challenge his guilty plea by asserting that he lied while under oath, even if he avers that counsel induced the lies .... A person who elects to plead guilty is bound by the statements he makes in open court while under oath and he may not later assert grounds for withdrawing the plea which contradict the statements he made at his plea colloquy ....
A criminal defendant who elects to plead guilty has a duty to answer questions truthfully. We [cannot] permit a defendant to postpone the final disposition of his case by lying to the court and later alleging that his lies were induced by the prompting of counsel. ...
Commonwealth v. Pollard, 832 A.2d 517, 523-24 (Pa. Super. 2003) (citations
omitted).
Moreover, this alleged threat by trial counsel did not render Moore's decision to
plead guilty one that was not knowing, intelligent and voluntary. In the
Commonwealth's formal notice pursuant to Pa.R.Crim.P. 802 of its intent to seek a
sentence of death against Moore, the Commonwealth indicated that it believed it could
prove two statutory aggravating circumstances at trial: (1) Moore committed the killing
21 while in the perpetration of three felonies, namely involuntary deviate sexual
intercourse, burglary and robbery, 42 Pa.C.S.A. § 9711 (d)(6); and (2) Moore committed
the murder by means of torture. 42 Pa.C.S.A. § 9711 (d)(B). Given the extensive
testimonial, physical and expert evidence in this case, including Moore's own
admissions, and the brutal nature of the victim's death, a sentence of death was a very
real possibility for Moore. Being on death row would prevent Moore from holding his
child again.
Under the terms of the negotiated plea, the Commonwealth agreed to forego its
opportunity to seek imposition of the death penalty and, in addition, agreed to no/le pros
two of the charges in return for Moore's plea of guilty to first degree murder. It was
clear from the responses which Moore made during the careful, lengthy and thorough
guilty plea colloquy that his desire to avoid exposure to the death penalty was the
reason for his plea. Thus, Moore gained a substantial benefit by pleading guilty since,
by so doing, he not only eliminated the potential for the imposition of the death
sentence but he also avoided potential convictions and sentences on two other charges
which the Commonwealth had agreed to no/le pros in accordance with the terms of the
negotiated plea. Moore further secured the opportunity of holding his child again, albeit
in a state correctional institution.
Finally, it is well settled that the threat of receiving the death penalty after trial is
not an illegal inducement of a guilty plea. Commonwealth v. Blackwell, 647 A.2d 915,
922-23 (Pa. Super. 1994). See also Commonwealth v. Wilcox, 312 Pa. Super. 184,
189-90, 458 A.2d 575, 578-79 (1983) (guilty plea not involuntary on ground that
22 prosecutor unfairly bargained with an unrealistic threat of the death penalty where
desire to avoid exposure to death penalty was reason for plea to murder). Accordingly,
this issue lacks merit.
Next, Moore argues that his trial counsel was ineffective for failing to litigate the
issues contained in his omnibus pretrial motion. During the oral colloquy, Moore
acknowledged that by pleading guilty he was waiving any rights that may exist with
regard to the two pretrial motions which his counsel had filed, and was, essentially,
"asking that those motions be dismissed or not addressed." (N.T., Moore Guilty
Plea/Sentencing at 8.) Likewise, in the written guilty plea colloquy, Moore manifested
his understanding that, by pleading guilty, he was giving up his right to be heard on any
filed pretrial motions. (Moore Guilty Plea Colloquy at ,I 23.) Thus, Moore's claim is
defeated by his own statements made during the oral plea colloquy and on the written
colloquy.
Moore's next issue regarding counsel's alleged fraudulent waiver of his
arraignment17 also lacks merit. As noted above, to succeed in showing prejudice for a
claim of ineffectiveness in connection with a guilty plea, the defendant "must show that
it is reasonably probable that, but for counsel's errors, he would not have pleaded guilty
11 A defendant may waive his appearance at a formal arraignment if "the defendant and counsel sign and file with the clerk of the courts a waiver of appearance at arraignment," with an acknowledgment that the defendant understands the nature of the charges and is advised of his due process rights to file pre-trial motions and the time periods associated with each. Pa.R.Crim.P 571 (0)(2) (emphasis added). Moore claims Attorney Conrad "commited [sic] fraud by forging [Moore's] signature to waive Arraignment on February 13th, 2015." (See Pro Se PCRA Petition at 1J 15(8)(9); see a/so Prose PCRA Petition, Exhibit "A".) In fact, Attorney Conrad signed Moore's name and then placed his initials beside the signature, indicating it was not an attempt at forgery.
23 and would have gone to trial." Hickman, 799 A.2d at 141. Moore's claim regarding trial
counsel's alleged forgery on a waiver of arraignment form had no bearing on his
decision to plead guilty. Moore cannot demonstrate how this allegation, if true, would
have effected the outcome of these proceedings; thus, he cannot prove prejudice.
"The main purposes of arraignment are: to ensure that the defendant is advised
of the charges; to have counsel enter an appearance ... ; and to commence the period
of time within which to initiate pretrial discovery and file other motions." Pa.R.Crim.P.
571, Comment. The record establishes that Moore was fully advised of the nature of
the charges over a month before his scheduled formal arraignment18 and that trial
counsel, who had entered his appearance, timely initiated pretrial discovery and filed
other relevant motions.19 Thus, the main purposes of arraignment had been satisfied,
and Moore can establish no prejudice by counsel's waiver of arraignment. See
Commonwealth v. Johonoson, 844 A.2d 556, 564 (Pa. Super. 2004) (ineffectiveness
claim based upon allegation that defense counsel forged defendant's signature on a
wavier of arraignment failed for lack of demonstrable prejudice); Commonwealth v.
Keyser, 2420 EDA 2015, 2016 WL 5266600, at *9 (Pa. Super. July 20, 2016) (same).
This claim, therefore, is frivolous and must be rejected. See Commonwealth v. Paolello, 542 Pa. 47, 665 A.2d 439, 454 (1995) (where it is clear that a defendant has
1 °Following the waiver of his preliminary hearing on January 9, 2015, Moore met with the police later that afternoon for an interview. At that time, Moore was fully advised of the nature of the charges against him. (See Moore Police Interview.) 19 See, for example, motion for funds to hire investigator filed March 13, 2015, motion for funds to hire psychologist filed July 8, 2015, motion for funds to retain mitigation specialist filed July 20, 2015, and omnibus pretrial motion filed September 28, 2015.
24 failed to prove prejudice, an ineffective assistance claim may be disposed of on that
basis alone).
Lastly, Moore maintains that trial counsel was ineffective because he failed to
provide Moore with a defense or present exculpatory evidence favorable to Moore.
This allegation is without arguable merit as such an allegation is not cognizable under
the PCRA. As noted above, all grounds of appeal are waived after a guilty plea has
been entered except challenges to the voluntariness of the plea, the jurisdiction of the
sentencing court, and the legality of the sentence. Kennedy, 868 A.2d at 593. Moore's
sole challenge is to the validity of his plea, and this claim simply does not impact the
validity of Moore's plea.
Assuming, arguendo, that the issue of trial counsel's failure to establish a
defense or present exculpatory evidence somehow implicates an invalid plea, the issue
still has no merit. Moore does not suggest any defense in his prose petition that trial
counsel failed to explore.
At the guilty plea/sentencing hearing, Moore admitted that he can read, write and
understand the English language and that he graduated from high school. (N.T., Moore
Guilty Plea/Sentencing at 5.) He admitted that he has never been treated for any type
of mental illness. (ld.; see also Moore Guilty Plea Colloquy at ml 3-6.) A mental health
defense was not a viable option for trial counsel to present."
20 Trial counsel received $2,500.00 to hire the services of a psychologist for purposes of Moore's defense. Specifically, counsel noted in the motion for funds that "it is imperative that [Moore] have a complete psychological evaluation performed by a competent medical expert to determine [Moore's] cognitive abilities." (Motion for Funds to Hire Psychologist at ,i 6.) Had the evaluation revealed a significant mental impairment, trial counsel would have presented a mental infirmity defense.
25 If Moore's claim of ineffectiveness is related to counsel's failure to properly
investigate Moore's claim of innocence, Moore must point to a specific harm suffered as
a result of trial counsel's alleged failure, and must show that an investigation would I
have uncovered something that would have been helpful to Moore's case. See
Commonwealth v. Rainey, 593 Pa. 67, 102, 928 A.2d 215, 236 (2007). It is important
to first note that Moore's claim of innocence is contradicted by his admission of the
facts supporting the elements of each offense to which he pleaded guilty. (N.T., Moore
Guilty Plea/Sentencing at 33.) Additionally, Moore's recorded statement to the police,
the recorded statement of co-conspirator, Rutter, the scientific evidence connecting
Moore to the crime scene, and Moore's use of the victim's ATM card the night of the
homicide, defeat Moore's claim of innocence.
Given the evidence in this case, Moore cannot establish that there is a
reasonable probability that the outcome of his case would have been different but for
counsel's alleged ineffectiveness in failing to investigate for exculpatory evidence. See
Chmiel, 612 Pa. at 362, 30 A.3d at 1127-28. There was no lack of evidence linking
Moore to these crimes. Accordingly, Moore has not met the burden of proof for this
PCRAclaim.
The Commonwealth was seeking the death penalty in this case, and the plea
bargain secured by defense counsel avoided a potential death penalty. Moore may not
be pleased with the results of his negotiated guilty plea, but he cannot now obtain relief
by claiming he felt pressured by trial counsel to plead guilty. The evidence simply does
not support Moore's claim of unlawful inducement or ineffective assistance of counsel.
26 IV. Conclusion
For the reasons set forth above, Thomas Gregory Moore's prose petition for
post conviction collateral relief will be dismissed without further proceedings.
Accordingly, I enter the following:
27 IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL
COMMONWEAL TH OF PENNSYLVANIA
v. No. 023r-2015
THOMAS GREGORY MOORE r- )> � ::z -..I q, ::;y; � ::c::i, ORDER U) -< -I (.,,) � 0 �
AND NOW, this 301h day of May, 2017, it is hereby ORDERED that Thomas�re� g z - ::::0 Moore's prose petition for post conviction collateral relief is DISMISSED without a �ari� � =u en There are no genuine issues concerning any material fact, Moore is not entitled to �st
conviction collateral relief, and no purpose would be served by any further proceedings.
Further, the April 24, 2017, letter of Moore's court-appointed attorney, Randall L. Miller,
Esquire, a copy of which was attached to this Court's Rule 907 Notice filed on April 25, 2017,
states that the pro se petition is lacking in merit as a matter of law, a conclusion with which I
agree after my independent review of the record. Accordingly, Mr. Miller is granted leave to
withdraw as counsel.
Pursuant to Pa.R.Crim.P. 907(4), this Court advises Moore that he has the right to
appeal from this Order. Moore shall have 30 days from the date of this final Order to appeal to
the Superior Court of Pennsylvania. Failure to appeal within 30 days will result in the loss of
appellate rights.
Copies to: Travis S. Anderson, Assistant District Attomey ., . " "" .• n •·. ·. ..:;
Randall L. Miller, Esquire .r.. ;. 1 ;., : V:. Thomas Gregory Moore, #MP-1983, SCI-Albion, 1Q?;f§t�oute 1_.a;,Albion;:PA ., .... 16475-0002 - CERTIFIED MAIL . .... . .. ,. \.,
IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA CRIMINAL .. COMMONWEALTH OF PENNSYLVANIA
v. No. 0238 - 2015
THOMAS G. MOORE i r-,.� ;.... } i:::".'!"I :;J�: --�-J
Pa.R.A.P.1925(a) MEMORANDUM OF OPINION n ... f•l » {. c: ::n (./) :::,.�� A --l r, N .., ;:;o co -q
BY: ASHWORTH, J., JUNE 28, 2017 (""') r::-:, ::� --0 0 C) c z ...... u.) .. ... c :::0 . Defendant Thomas G. Moore has filed an appeal to the Superior Court of
Pennsylvania from the Order of this Court entered on May 30, 2017, denying Defendant's
prose PCRA petition. The reasons for that decision are stated in my May 30, 2017,
Opinion. Therefore, I rely on that Opinion to comply with Pa.R.A.P. 1925(a).
v L. ASHWORTH JUDGE
Copies to: Susan E. Moyer, Assistant District Attorney Thomas G. Moore, #MP 1983, SCI-Albion, 10745 Route 18, Albion, PA 16475-0002
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