J-A09012-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

SHAWN T. MOSES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 2449 EDA 2021

Appeal from the PCRA Order Entered November 22, 2021

In the Court of Common Pleas of Philadelphia County Criminal Division at 

No(s): CP-51-CR-00010562-2012

BEFORE: NICHOLS, J., SULLIVAN, J., and PELLEGRINI, J.*

MEMORANDUM BY NICHOLS, J.: FILED JUNE 8, 2022

Appellant Shawn T. Moses appeals from the order denying his first 

timely Post Conviction Relief Act1 (PCRA) petition. Appellant argues that the 

PCRA court erred in rejecting his claim that standby counsel was ineffective. 

We affirm.

A prior panel of this Court summarized the relevant facts of this matter 

as follows:

[Appellant] was arrested and charged with robbery, aggravated 

assault, [possession of an instrument of crime] (PIC), simple 

assault, and related offenses. [Appellant] was appointed 

numerous court-appointed counsel and public defenders, and was 

dissatisfied with the representation provided by each of them. 

[Appellant] thereafter sought leave to proceed pro se with standby 

counsel[, Attorney Judge Hall, Esq.]. The trial court undertook a 

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* Retired Senior Judge assigned to the Superior Court.

1 42 Pa.C.S. §§ 9541-9546.
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colloquy on the record to determine [Appellant’s] understanding 

of the rights he was giving up by waiving counsel, the risks 

associated with proceeding pro se, and the voluntariness of his 

decision to do so. Ultimately, because [Appellant] convinced the 

trial court that his decision to represent himself at trial was 

knowing, voluntary and intelligent, the court granted his request 

to proceed pro se with standby counsel. 

The matter then proceeded to a jury trial. During crossexamination, [Appellant] attempted to question [the complainant, 

Brian] Atkerson regarding text messages that Atkerson 

exchanged with [Appellant’s] mother, Ms. Moss. Atkerson 

admitted that he had sent her text messages, but could not recall 

the substance of the text messages. The Commonwealth objected 

to any questioning regarding the content of the text messages 

because they had not been provided to the Commonwealth. The 

trial court ruled that the text messages were irrelevant, and 

precluded their admission. At the close of the Commonwealth’s 

case, [Appellant] represented to the trial court that he intended 

to call Ms. Moss as a witness. The trial court initially stated that 

it would receive her testimony; however, the trial court later 

reversed that ruling because [Appellant’s] only purpose in calling 

Ms. Moss was to have her testify about the text messages. 

[Appellant] also represented to the trial court that he wished to 

testify on his own behalf. The trial court conducted a colloquy 

regarding his testimonial rights, after which [Appellant] was 

undecided about testifying. The trial court instructed [Appellant]

to consider the matter overnight, and to speak with standby 

counsel regarding his decision. The next day, [Appellant]

informed the trial court that he had changed his mind, and did not 

wish to testify. At the conclusion of trial, the jury convicted 

[Appellant] of the above-noted offenses.

Commonwealth v. Moses, 2597 EDA 2019, 2020 WL 5906140 at *1-2 (Pa. 

Super. filed Oct. 6, 2020) (unpublished mem.).

On August 10, 2018, the trial court sentenced Appellant to an aggregate 

term of six to fifteen years’ incarceration. Appellant subsequently filed a direct 

appeal in which he challenged the validity of his colloquy to proceed pro se,
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his waiver of the right to testify, and several of the trial court’s evidentiary 

rulings. Ultimately, this Court affirmed Appellant’s judgment of sentence. 

See id. at *9.

Appellant filed a timely PCRA petition on October 19, 2021. The PCRA 

court appointed counsel, who filed an amended petition on Appellant’s behalf. 

On October 25, 2021, the PCRA court issue a Pa.R.Crim.P. 907 notice of intent 

to dismiss Appellant’s petition without a hearing. Appellant did not file a 

response. On November 22, 2021, the PCRA court issued an order and opinion 

dismissing Appellant’s petition. See PCRA Ct. Order & Op., 11/22/21, at 1-2.

Appellant subsequently filed a timely notice of appeal. The PCRA court 

did not order Appellant to file a Pa.R.A.P. 1925(b) statement and Appellant 

did not file one.

On appeal, Appellant raises the following issue:

Did the PCRA err by denying [Appellant’s] claim of ineffectiveness 

when standby counsel [Attorney] Hall was so legally ineffective 

that it was the equivalent to having no legal assistance at all?

Appellant’s Brief at 7.

The crux of Appellant’s claim is that Attorney Hall was ineffective 

because he failed to fulfill his obligations as standby counsel. In support, 

Appellant asserts that the role of standby counsel is to “help pro se defendants 

navigate the challenges of a criminal trial.” Id. at 21. Appellant argues that 

“it is clear from the record” that he wanted assistance, but that Attorney Hall 

“offered nothing.” Id. Specifically, Appellant argues that standby counsel (1) 
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failed to provide the Commonwealth with text messages that he received from 

Appellant and Appellant’s mother, which “were ultimately precluded at trial 

because of discovery violations;” (2) failed to adequately communicate with 

Appellant’s family; and (3) failed to make various objections at trial. Id. at 

12-16. Therefore, Appellant concludes that Attorney Hall, as “standby 

counsel[,] was so woefully absent and legally ineffective that it was the 

equivalent to having no legal assistance at all.” Id. at 20.

Our review of the denial of PCRA relief is limited to “whether the record 

supports the PCRA court’s determination and whether the PCRA court’s 

decision is free of legal error.” Commonwealth v. Lawson, 90 A.3d 1, 4 

(Pa. Super. 2014) (citation omitted). “The PCRA court’s credibility 

determinations, when supported by the record, are binding on this Court; 

however, we apply a de novo standard of review to the PCRA court’s legal 

conclusions.” Commonwealth v. Mitchell, 105 A.3d 1257, 1265 (Pa. 2014) 

(citation omitted). 

We presume that the petitioner’s counsel was effective. 

Commonwealth v. Williams, 732 A.2d 1167, 1177 (Pa. 1999). To establish 

a claim of ineffective assistance of counsel, a defendant “must show, by a 

preponderance of the evidence, ineffective assistance of counsel which, in the 

circumstances of the particular case, so undermined the truth-determining 

process that no reliable adjudication of guilt or innocence could have taken 

place.” Commonwealth v. Turetsky, 925 A.2d 876, 880 (Pa. Super. 2007) 

(citations omitted). 
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The burden is on the defendant to prove all three of the following 

prongs: “(1) the underlying claim is of arguable merit; (2) that counsel had 

no reasonable strategic basis for his or her action or inaction; and (3) but for 

the errors and omissions of counsel, there is a reasonable probability that the 

outcome of the proceedings would have been different.” Id. (citations 

omitted). Moreover, “[a] failure to satisfy any prong of the ineffectiveness 

test requires rejection of the claim of ineffectiveness.” Commonwealth v. 

Daniels, 963 A.2d 409, 419 (Pa. 2009) (citation omitted).

With respect to standby counsel, our Supreme Court has explained:

When a defendant elects to proceed at trial pro se, the 

defendant—and not standby counsel—is in fact counsel of record 

and is responsible for trying the case. This understanding of the 

limited role of standby counsel is essential to satisfy the United 

States Supreme Court’s directive that a defendant’s choice to 

proceed pro se “must be honored out of ‘that respect for the 

individual which is the lifeblood of the law’” even when the 

defendant acts to his or her own detriment. [Faretta v. 

California, 422 U.S. 806, 834 (1975)]. This understanding also 

underlies our prior holding that a defendant who chooses to 

represent himself cannot obtain relief by raising a claim of 

ineffectiveness of counsel or standby counsel. 

Commonwealth v. Spotz, 47 A.3d 63, 83 (Pa. 2012) (some citations 

omitted).

Here, the PCRA court addressed Appellant’s claim as follows:

[Appellant] seeks a new trial based on the alleged ineffectiveness 

“of trial counsel, [Attorney] Hall.” His petition sets forth the 

alleged areas of ineffectiveness by [Attorney] Hall. The alleged 

ineffectiveness consists of failure to adequately visit [Appellant]

in custody, receive phone calls and text messages from 

[Appellant’s] mother -- texts of which [Appellant] was aware --
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and failure to object to certain questions posed by the prosecution 

or to certain testimony. 

The record is crystal clear that [Attorney] Hall was not “trial 

counsel.” On March 20, 2017, [Appellant] was given leave to 

represent himself pro se, from which point [Attorney] Hall was 

standby counsel, including at trial which commenced on 

November 6, 2017. [This is a] fact [Appellant] concedes in his 

petition. In [Appellant’s] direct appeal . . . he challenged the 

decision to permit him to proceed pro se at trial, [and that]

challenge was rejected because “as the record demonstrates that 

the trial court satisfied the minimum requirements of Rule 121 [of 

the Pennsylvania Rules of Criminal Procedure], and the record 

supports the trial court’s conclusion that [Appellant’s] waiver of 

counsel was, in fact, knowing, intelligent, and voluntary, we 

cannot grant him relief on his first issue.” Moses, 2020 WL 

5906140 at *6. Since [Appellant] was proceeding pro se, 

[Attorney] Hall was not trial counsel and was not responsible for 

interposing objections or otherwise trying the case, [Appellant]

was. As the Superior Court explained in its opinion on 

[Appellant’s] direct appeal: 

[W]hen a defendant elects to proceed pro se, as was herein 

the case, he cannot obtain relief by raising a claim of 

ineffectiveness of standby counsel. See [Spotz, 47 A.3d at

83]; see also Commonwealth v. Fletcher, 986 A.2d 759, 

778 (Pa. 2009) (holding that a defendant who chooses to 

represent himself has no recourse if he or standby counsel 

has been ineffective). The appointment of standby counsel 

does not imply or authorize some sort of hybrid 

representation. Spotz, 47 A.3d at 83. Thus, “[w]hen a 

defendant elects to proceed at trial pro se, the defendantand not standby counsel-is in fact counsel of record and is 

responsible for trying the case.” Id.

Moses, 2020 WL 5906140 at *8.

[Appellant] also alleges a failure by [Attorney] Hall to return 

phone calls from [Appellant’s] mother or accept text messages 

from her on March 6, 2017. This time period is prior to [Appellant]

taking over his own representation on March 20, 2017, before 

[Attorney] Hall’s status changed from defense counsel to standby 

counsel. [Appellant] also alleges that “[Attorney] Hall never 

provided to the Commonwealth text messages that had been 

provided to him by [Appellant] and [Appellant’s] mother and that 
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were ultimately precluded at trial because of discovery violations. 

Had these text messages not been precluded, [Appellant] would 

have been able to challenge the credibility of and/or impeach the 

complainant.” This averment misrepresents the record. The text 

messages (and [Appellant’s] mother’s testimony relating thereto) 

were not ultimately precluded for any failure to provide them in 

discovery, rather they were precluded because they were 

irrelevant. This issue was fully litigated on appeal and 

[Appellant’s] claim of error was rejected by the Superior Court. 

Since the claim of error upon which [Appellant] bases his assertion 

of ineffectiveness has been previously litigated and decided 

against him, [Appellant] is not eligible for relief. 42 Pa.C.S. § 

9543(a)(3) (“To be eligible for relief under this subchapter, the 

[defendant] must plead and prove by a preponderance of the 

evidence all of the following: . . . That the allegation of error has 

not been previously litigated or waived”). Counsel cannot be 

found ineffective for failing to do something that was futile, which 

in this case is his alleged failure to turn over irrelevant, 

inadmissible text messages. Further, [Appellant] acknowledged 

having a copy of the text messages produced by his mother. 

Therefore, [Appellant] could have provided them to the 

Commonwealth at any point during the six (6) months between 

assuming his own defense on March 20, 2017, and the 

commencement of trial on November 6, 2017. 

[Appellant] also alleges that [Attorney] Hall failed to make

sufficient visits to him while he was incarcerated, but [Appellant]

does not relate this to any prejudice, an essential element of an 

ineffectiveness claim. . . .

In sum, because [Appellant] represented himself from March 20, 

2017, through trial in November of 2017, he cannot allege the 

ineffectiveness of standby counsel in not objecting to questions or 

testimony; that responsibility lay with [Appellant] as the person 

trying the case. Additionally, assuming for the sake of argument 

that [Attorney] Hall did fail to turn over text messages prior to 

[Appellant] assuming his own representation, he cannot be found 

ineffective because the messages were found inadmissible on 

grounds having nothing to do with [Attorney] Hall. The claims 

regarding production of the text messages were previously 

litigated and found devoid of merit. There was no prejudice to 

[Appellant] from the alleged failures of [Attorney] Hall in regard 

to the text messages, visiting [Appellant] or not accepting his 

mother’s phone calls, and therefore counsel cannot be ineffective. 
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Having reviewed the counseled PCRA petition and the record 

relevant to [Appellant’s] claims, the court is satisfied from its 

review that there are no genuine issues concerning any material 

fact and that [Appellant] is not entitled to post-conviction 

collateral relief, and no purpose would be served by any further 

proceedings.

PCRA Ct. Order & Op. at 1-2 n.1 (some formatting altered and some citations 

omitted).

Based on our review of the record, we discern no error of law in the 

PCRA court’s conclusions. See Lawson, 90 A.3d at 4. The PCRA court 

thoroughly addressed Appellant’s claims regarding Attorney Hall’s role as 

standby counsel and concluded that Appellant failed to establish a basis for 

PCRA relief. See Spotz, 47 A.3d at 83; Daniels, 963 A.2d at 419. Therefore, 

we affirm based on the PCRA court’s analysis of this issue. See PCRA Ct. 

Order & Op. at 1-2 n.1.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/08/2022
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