Com. v. Moss, C.

• Court: Superior Court of Pennsylvania
• Decided: April 23, 2024
• Docket: 1176 MDA 2023
• Status: Unpublished

Opinion

J-S01030-24

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : CRAIG E. MOSS : : Appellant : No. 1176 MDA 2023

Appeal from the PCRA Order Entered July 19, 2023 In the Court of Common Pleas of Franklin County Criminal Division at No(s): CP-28-CR-0001036-1996

BEFORE: PANELLA, P.J.E., KUNSELMAN, J., and COLINS, J.*

MEMORANDUM BY KUNSELMAN, J.: FILED: APRIL 23, 2024

Craig E. Moss appeals pro se from the order denying his serial petition

filed pursuant to the Post Conviction Relief Act (“PCRA”). 42 Pa.C.S.A. §§

9541-46. For the reasons that follow, we affirm.

Moss’s arson conviction, appeals, and countless petitions for post-

conviction relief span decades, including nine prior decisions by this Court.

During these years, Moss sought both post-conviction relief and modification

of his restitution order. Because, at times, the pursuit of one avenue for relief

caused delay in another, we provide a detailed account of the pertinent facts

and procedural history leading to the present appeal.

At the above docket, Moss was charged with arson, criminal mischief,

and eight counts of reckless endangerment. These charges arose after

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* Retired Senior Judge assigned to the Superior Court. J-S01030-24

information obtained from a confidential informant led to Moss’s arrest for

setting a fire on April 15, 1996 in the apartment of Robert Eyler, an individual

with whom Moss previously had a violent argument. The fire resulted in

significant damage to eight apartments in the building. When Moss was

charged with these offenses, he was already facing robbery and theft charges

at another docket resulting from an incident at a Best Western motel.

On January 13, 1997, Moss agreed to plead nolo contendere to the arson

charge in exchange for the Commonwealth dropping all remaining charges at

both dockets. On March 5, 1997, the trial court sentenced Moss to 42 to 240

months of imprisonment, a $300.00 fine, and $81,535.51 in restitution, which

included $423.50 payable to Best Western, and $4,305.00 payable to Mr.

Eyler.

On March 25, 1997, the trial court denied Moss’s motion to withdraw his

plea and his motion to modify sentence. On April 7, 1997, Moss’s trial counsel

was permitted to withdraw after Moss claimed counsel mispresented certain

facts in order to get Moss to plead nolo contendere. The trial court appointed

new counsel. In his direct appeal, Moss claimed that the trial court abused its

discretion in denying his motion to withdraw his plea and the discretionary

aspects of his sentence.1 Finding no merit to either claim, we affirmed Moss’s

judgment of sentence on December 5, 1997. Commonwealth v. Moss, 706 ____________________________________________

1 On April 15, 1997, Moss filed a PCRA petition in which he challenged trial

counsel’s effectiveness. The trial court denied this petition as premature because of the pendency of Moss’s direct appeal.

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A.2d 1256 (Pa. Super. 1997)(unpublished memorandum). Moss did not seek

further review.

On June 5, 1998, Moss filed a timely pro se PCRA, and the PCRA court

appointed counsel. Although PCRA counsel filed an amended petition on

Moss’s behalf, this counsel was permitted to withdraw after counsel received

a letter from Moss containing the threat of “hanging his fat communist ass

from a streetlight in front of [his] office.” Trial Court Order, 1/15/99.

Thereafter, the PCRA court appointed new counsel, who filed a second

amended PCRA petition on Moss’s behalf on May 3, 1999.

On August 10, 1999, the PCRA court held an evidentiary hearing at

which Moss, his mother, and trial counsel testified. Following the hearing, the

PCRA court entered an order dismissing Moss’s petition. Moss filed a timely

appeal. On November 17, 1999, Moss filed an application to dispense with

counsel and proceed pro se. The PCRA court granted Moss’s motion.

In that petition, Moss challenged the effectiveness of trial and appellate

counsel, and asserted that the eligibility requirements of the PCRA were

unconstitutional. On April 27, 2001, we affirmed based on the PCRA court’s

opinion, and our Supreme Court denied Moss’s petition for allowance of appeal

on October 1, 2001. Commonwealth v. Moss, 778 A.2d 736 (Pa. Super.

2001) (unpublished memorandum), appeal denied, 788 A.2d 374 (Pa. 2001).2

2 On June 22, 2001, Moss filed a motion for sentence modification. Although the court below did not treat this motion under the PCRA, the court dismissed (Footnote Continued Next Page)

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Moss filed his second pro se PCRA petition on October 12, 2001, and the

PCRA court dismissed the petition without a hearing on December 11, 2001.

Moss appealed. Concluding that Moss’s serial petition was untimely, and

noting that Moss did not argue any time-bar exception, this Court affirmed the

denial of post-conviction relief on October 30, 2002. Commonwealth v.

Moss, 816 A.2d 332 (Pa. Super. 2002) (unpublished memorandum).

Thereafter, Moss filed two more pro se PCRA petitions, both of which

were denied. On October 17, 2005, Moss filed another pro se PCRA petition,

his fifth. On November 2, 2005, the PCRA court denied Moss’s serial petition

without a hearing. Moss appealed to this Court in which he wished to

challenge the legality of his sentence insofar as it included an excessive and/or

unsupported amount of restitution. With regard to timeliness, Moss baldly

asserted that his inability to file a timely petition was caused by the

interference of government officials in that the Department of Corrections

failed provide him with an adequate law library and legal assistance. Rejecting

this time-bar claim, as well as Moss’s attempt to raise an equitable exception

to the PCRA’s time bar, we affirmed the PCRA court’s order denying him post-

conviction relief on February 2, 2007. Commonwealth v. Moss, 919 A.2d

974 (Pa. Super. 2007) (non-precedential decision).

as filed thirty days beyond the imposition of sentence. Moss appealed, and, on December 12, 2001, we affirmed the court’s order. See Commonwealth v. Moss, 792 A.2d 1285 (Pa. Super. 2001) (unpublished memorandum).

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Over the next twelve years, Moss filed no further motions at this docket.

On September 29, 2017, he filed a pro se document entitled, “Motion to Vacate

and Correct Illegal Sentence.” Therein, Moss requested that the court below

modify or vacate illegal aspects of his sentence of restitution under 18

Pa.C.S.A. § 1106. In addition, Moss averred that he was not given adequate

credit for time served prior to his sentencing hearing in March of 1997.

Therefore, Moss requested the court to vacate his illegal sentence and conduct

a new sentencing hearing. The court below treated this filing as a serial PCRA

petition and issued a Pa.R.Crim.P. 907 notice its intent to dismiss it without a

hearing. Moss filed a pro se response. By order of court entered July 6, 2018,

the PCRA court dismissed the petition.

Moss appealed. On January 3, 2019, this Court filed a memorandum in

which we affirmed in part, vacated in part, and remanded for further

proceedings. We affirmed the court’s order insofar as it denied Moss’s time-

credit claim. However, citing relevant case law interpreting Section 1106 to

permit a criminal defendant to seek a modification or amendment of a

restitution order at any time directly from the trial court, we agreed with Moss

that the court below erred in treating his restitution claim as cognizable under

the PCRA and deeming it untimely. Accordingly, we vacated the court’s order

to the extent it denied Moss’s motion to modify restitution, and we remanded

for the court to assess the merits of that issue. See Commonwealth v.

Moss, 209 A.3d 476 (Pa. Super. 2019) (non-precedential decision).

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Following remand, the trial court held a hearing on February 25, 2019.

On April 16, 2019, the trial court denied Moss’s motion. Moss appealed. On

January 6, 2020, this Court affirmed Moss’s judgment of sentence in part and

again remanded for resentencing on the issue of restitution. Specifically, we

found that the trial court improperly deferred the determination of the amount

of restitution to be paid by Moss to the county probation department. On

remand, we directed the trial court to determine the correct amount of

restitution. See Commonwealth v. Moss, 226 A.3d 611 (Pa. Super. 2020)

(non-precedential decision). In addition, this Court sua sponte found that,

since the Commonwealth nolle prossed the charges forming the basis for the

damages to Best Western, Moss was not criminally liable for those damages.

Thus, we directed the trial court not to reimpose the restitution award to Best

Western.

Following the second remand, the trial court held a restitution hearing

on June 4, 2020. At that time, Moss sought to make a statement to the court,

which the trial court denied.3 The trial court the heard testimony and was

presented other evidence regarding the amount still owed to the owner of the

apartment building and the insurance company. Because the Commonwealth

failed to present any evidence as to the losses sustained by Mr. Eyler, the

court did not reimpose the $4,305.00 order to him. Additionally, pursuant to

this Court’s directive, the trial court also did not reimpose the restitution award ____________________________________________

3 Moss had retained counsel to represent him at this hearing.

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to Best Western. However, noting that Moss had already made restitution

payments toward those previously-imposed awards, the court directed Moss

to file a motion as to the manner in which those payments should be returned

to Moss or applied to his still outstanding restitution obligations.

Moss appealed. On May 21, 2021, this Court vacated Moss judgment of

sentence because the trial court erred in denying Moss the opportunity to

address the court at resentencing. See Commonwealth v. Moss, 255 A.3d

1270 (Pa. Super. 2021) (non-precedential decision). We directed the trial

court on remand to resentence Moss in accordance with this Court’s January

6, 2020, memorandum. Id.

Before another remand hearing was held, however, on June 24, 2021,

Moss filed the pro se PCRA petition at issue in this appeal, his seventh. On

July 7, 2021, the PCRA court entered an order stating that no action would be

taken on this petition because Moss’s resentencing hearing was pending. The

court directed Moss to refile his petition once that hearing was completed.

On July 12, 2021, the trial court held another resentencing hearing and,

pursuant to this Court’s remand, permitted Moss to address the court. At the

hearing’s conclusion, the trial court reimposed restitution as to the apartment

building owner and the insurance company. Once again, it did not reimpose

the restitution awards to Mr. Eyler or Best Western. At that time, the court

indicated that it was unsure how to accomplish repayment for the restitution

payments Moss had made that were applied to those vacated awards.

Therefore, as part of its July 12, 2021 restitution order, the court permitted

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Moss the opportunity to file a memorandum of law setting forth relevant

precedent and a proposed procedure for repayment.4

Thereafter, Moss filed a memorandum but did not propose a mechanism

for repayment. The Commonwealth did not file a brief or propose any

mechanism for repayment. After considering this Court’s prior decisions, the

trial court concluded that “it would be manifest injustice to order [Mr.] Eyler

and Best Western to repay the money that had been erroneously paid to them

many years ago by no fault of their own.” Order, 8/9/21, at 2. Therefore,

the court issued a payment order, which directed the county Clerks of Courts

to issue a check to Moss in the amount of $4,728.50 for repayment of the

restitution award paid to Mr. Eyler ($4,305.00), and Best Western ($423.50).

Several filings occurred following the issuance of that payment order.

On August 16, 2021, the trial court, sua sponte, entered an order scheduling

a hearing related to its payment order for September 9, 2021. Before that

order was filed, however, Moss filed a pro se notice of appeal from the July

12, 2021 restitution order. Therefore, the trial court cancelled the scheduled

hearing and stayed the payment order pending resolution of Moss’s appeal.5

4 Four days later, on July 16, 2021, Moss refiled the PCRA petition at issue,

but, as explained infra, the PCRA court could not act on it because of the pending restitution issues.

5 By order entered October 12, 2021, we quashed Moss’s appeal as untimely

filed.

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On September 2, 2021, the Clerk of Courts filed a notice of appeal to

the Commonwealth Court from the payment order, which the Commonwealth

Court transferred to this Court. On December 13, 2022, this Court vacated

the payment order and remanded for proceedings consistent with our decision.

See Commonwealth v. Moss, 290 A.3d 672 (Pa. Super. 2022). Importantly,

we held that the trial court did not have authority to order the Clerk of Courts

to return funds that it did not possess. Id. However, because Mr. Eyler and

Best Western actually received the sums awarded to them, we remanded to

allow the trial court the opportunity to direct repayment. Id.

Following remand, the trial court held a restitution hearing on May 15,

20, 2023. At its conclusion, the trial court entered an order vacating its prior

directive that the Clerk of Courts pay Moss $4,728.50 for the return of

restitution. Instead, the court ordered Mr. Eyler, now deceased, to pay Moss

$4,305.00, and Best Western, now defunct, to pay Moss $432.50. Moss did

not appeal this order.6

Having entered a new restitution order as directed by this Court, the

PCRA court proceeded to address the pro se PCRA petition at issue. On May

26, 2023, the PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to

6 As noted infra, the PCRA petition at issue in this case was filed prior to the

trial court’s May 26, 2023 order regarding repayment of restitution and, therefore, Moss had not raised any issues therein regarding restitution. Thus, although Moss includes a claim regarding restitution in his issues on appeal, the claim is inappropriately raised for the first time on appeal. See generally, Pa.R.A.P. 302(a).

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dismiss the petition without a hearing. Moss did not file a response. By order

entered July 19, 2023, the PCRA court denied Moss’s 2021 PCRA petition. This

appeal followed. Both Moss and the PCRA court have complied with Pa.R.A.P.

1925.

Moss presents his statement of issues as follows:

I. INEFFECTIVE ASSISTANCE OF COUNSEL

II. PROSECUTORIAL MISCONDUCT

III. SHOULD THIS HONORABLE COURT IN THE INTEREST OF JUDICIAL ECONOMY ADDRESS [MOSS’S] CLAIM OF AN ILLEGAL SENTENCE OF TIME CREDIT

IV. WAS THE [TRIAL] COURT’S DECISION NOT TO ORDER FRANKLIN COUNTY TO REIMBURSE [MOSS] THE $4,305 CONTRARY TO THE U.S. SUPREME COURT’S DECISION IN NELSON V COLORADO

Moss’s Brief at 2.7

Before addressing these issues, however, we must first determine

whether the PCRA court correctly concluded Moss’s 2021 PCRA petition was

untimely filed, and that Moss failed to establish a time-bar exception.8 The

timeliness of a post-conviction petition is jurisdictional. Commonwealth v.

Hernandez, 79 A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for

7 We note that the Commonwealth did not file an appellate brief.

8 Although it is unclear from the record, it appears Moss is still on parole for

his 1997 arson sentence. See Moss v. Pennsylvania Board of Probation and Parole, 2020 WL 2060595 (Pa. Cmwlth., filed Apr. 29, 2020) (affirming Parole Board’s discretionary denial of Moss’s “street time” of almost eight years).

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relief under the PCRA, including a second or subsequent petition, must be filed

within one year of the date the judgment becomes final unless the petition

alleges, and the petitioner proves, that an exception to the time for filing the

petition is met.

The three narrow statutory exceptions to the one-year time bar are as

follows: “(1) interference by government officials in the presentation of the

claim; (2) newly discovered facts; and (3) an after-recognized constitutional

right.” Commonwealth v. Brandon, 51 A.3d 231, 233-34 (Pa. Super. 2012)

(citing 42 Pa.C.S.A. § 9545(b)(1)(i-iii)). In addition, exceptions to the PCRA’s

time bar must be pled in the petition and may not be raised for the first time

on appeal. Commonwealth v. Burton, 936 A.2d 521, 525 (Pa. Super.

2007); see also Pa.R.A.P. 302(a) (providing that issues not raised before the

lower court are waived and cannot be raised for the first time on appeal).

Moreover, a PCRA petitioner must file his petition “within one year of the date

the claim could have been presented.” 42 Pa.C.S.A. § 9545(b)(2).

Finally, if a PCRA petition is untimely and the petitioner has not pled and

proven an exception “neither this Court nor the [PCRA] court has jurisdiction

over the petition. Without jurisdiction, we simply do not have the legal

authority to address the substantive claims.” Commonwealth v.

Derrickson, 923 A.2d 466, 468 (Pa. Super. 2007) (citation omitted).

Here, Moss’s judgment of sentence became final on February 16, 1998,

thirty days after he failed to file a petition for allowance of appeal with our

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Supreme Court. See 42 Pa.C.S.A. § 9545(b)(3).9 Therefore, Moss had until

February 16, 1999, to file a timely PCRA petition. As Moss filed the petition

at issue in 2021, it is patently untimely unless he has satisfied his burden of

pleading and proving that one of the enumerated exceptions applies. 10 See

Hernandez, supra.

Moss has failed to plead and prove any exception to the PCRA’s time bar

in his 2021 PCRA petition. In that petition, Moss claimed he established both

the “governmental interference” and “newly-discovered fact” exceptions

based on his claim that, prior to the evidentiary hearing on his first PCRA

petition, the Commonwealth committed a violation of Brady v. Maryland,

373 U.S. 83 (1963), for failing to disclose that Moss’s trial counsel had been

disbarred. According to Moss, “[p]ursuant to Pa.R.D.E., 217(b)(c)(2),

(j)(4)(6)[,] [t]he Franklin County District Attorney was obligated to disclose

this fact to the defense and the court. An act that the district attorney

knowingly neglected to do.” Moss’s Brief at 7.

This claim is specious. A plain reading of Rule 217 of the Pennsylvania

Rules of Disciplinary Enforcement obligates the disbarred attorney, not the

attorney for the Commonwealth, to disclose the disbarred attorney’s status. ____________________________________________

9Because the thirtieth day fell on a Saturday, Moss had until the following Monday to file a timely petition for allowance of appeal. See generally, 1 Pa.C.S.A. § 1908.

10 None of Moss’s issues challenged ineffective assistance of counsel or other

issues related to the recent restitution hearings; instead, the first two issues related to his original 1997 plea and sentence and his last two issues, as indicated supra, are not properly before this Court.

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In addition, we note that trial counsel was permitted to withdraw in 1997,

before he was disbarred by consent on April 21, 1999, and the trial court

appointed separate counsel to represent Moss in his direct appeal and his first

PCRA petition.

In sum, Moss’s 2021 PCRA petition is untimely, and he has failed to

establish a time-bar exception. As such, both the PCRA court and this Court

lack jurisdiction to consider his substantive claims. Derrickson, supra. We

therefore affirm the PCRA court’s order denying him post-conviction relief.

Order affirmed.

Judgment Entered.

Benjamin D. Kohler, Esq. Prothonotary

Date: 04/23/2024

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