Com. v. Moore, T.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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