J-S09010-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

JOSHUA ROY MOSES 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 1067 EDA 2020

Appeal from the PCRA Order Entered March 3, 2020

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

No(s): CP-51-CR-0001275-2012

BEFORE: OLSON, J., McCAFFERY, J., and MUSMANNO, J.

MEMORANDUM BY OLSON, J.: FILED: MAY 17, 2021

Appellant, Joshua Roy Moses, appeals pro se from the order entered on 

March 3, 2020, which dismissed his petition filed under the Post-Conviction 

Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

We previously summarized the underlying facts of this case:

On November 17, 2011, Appellant was arrested during the 

execution of a search warrant at an apartment rented by 

Angel Morales . . . in Philadelphia. While police officers were 

searching the apartment, they observed Appellant stepping 

away from an open window. On the ground outside the 

window, the officers discovered several bags of crack 

cocaine, marijuana, and oxycodone along with a broken 

plate, a razor blade[,] and a cell phone. Appellant was 

charged with [possession of a controlled substance with the 

intent to deliver (“PWID”)] and other drug-related offenses.

Appellant moved to suppress the evidence seized during the 

execution of the warrant. On April 28, 2015, the trial court 

denied Appellant's suppression motion, and the case 

immediately proceeded to a jury trial against Appellant and 

two co-defendants, Morales and Glen Harvill. On May 1, 
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2015, the jury found Appellant guilty of PWID and possession 

of drug paraphernalia.

Commonwealth v. Moses, 190 A.3d 753 (Pa. Super. 2018) (unpublished 

memorandum) at 1-2, appeal denied, 196 A.3d 204 (Pa. 2018). 

On August 19, 2015, the trial court sentenced Appellant to serve six to 

12 years in prison for his convictions. We affirmed Appellant’s judgment of 

sentence on April 30, 2018 and the Pennsylvania Supreme Court denied 

Appellant’s petition for allowance of appeal on October 18, 2018. See id.

Appellant filed a timely, pro se PCRA petition on November 23, 

2018. Appellant raised the following claims in his pro se petition:

1. “Counsel was ineffective for failing to seek a plea offer or 

communicate what was being offered;”

2. “Trial counsel was ineffective for failing to conduct a 

reasonable pre-trial investigation, seek discovery, [and] 

interview defense witnesses;”

3. “Trial counsel rendered ineffective assistance for failing to 

object at sentencing to false information used by the court 

that was not included in any pre-sentence investigation 

report;”

4) “That the 6111 charge was dismissed at the preliminary 

hearing, but counsel did not file a motion to exclude that 

information from [Appellant’s] trial;”

5) “That [Appellant] did in fact live in the residence as both 

codefendants testified to at trial;”

6) “That trial counsel filed an omnibus pre-trial motion to 

preclude the government from introducing proofs of 

residence, which severely prejudiced [Appellant’s] defense 

and worked to his actual and substantial disadvantage, 

affecting the entire trial with errors of constitutional 

dimensions;”
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7) “That counsel failed to offer evidence of [Appellant’s] 

reasonable expectation of privacy at trial;”

8) “That counsel failed to photograph the inside and outside 

of the property to show that others had access to that area 

of the yard, as the codefendant testified when asked, that 

there are several windows looking out into this area;”

9) “That Agent Hasara testified it appeared to him that 

[Appellant] had just been moving into that room;”

10) “That counsel rendered ineffective assistance in failing to

adequately communicate with [Appellant] before trial;”

11) “Counsel rendered ineffective assistance by failing to 

establish [an] expectation of privacy in the 1925(b) 

statement.”

Appellant’s Pro Se PCRA Petition, 11/23/18, at 3-5 (some capitalization 

omitted).

The PCRA court appointed counsel to represent Appellant during the 

proceedings and counsel filed an amended PCRA petition on Appellant’s behalf. 

Within the amended petition, counsel repeated some of the claims Appellant

raised in his initial, pro se petition and counsel raised a number of additional 

ineffective assistance of counsel claims. See Amended PCRA Petition, 8/1/19, 

at 3-4.

On February 6, 2020, the PCRA court notified Appellant that it intended 

to dismiss his petition in 20 days, without holding a hearing, as it concluded 

that the claims in the petition were meritless. Trial Court Order, 2/6/20, at 

1; see also Pa.R.Crim.P. 907(1). The PCRA court finally dismissed Appellant’s 

petition on March 3, 2020. PCRA Court Order, 3/3/20, at 1.
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On April 29, 2020, Appellant filed a pro se notice of appeal and 

accompanied this notice with a statement of errors complained of on appeal, 

pursuant to Pennsylvania Rule of Appellate Procedure 1925(b).1 Appellant 

raised the following claims in his Rule 1925(b) statement:

[1.] The [PCRA] court abused its discretion in finding no merit 

to the claims raised in the PCRA petition, and denying the 

petition without a hearing, where trial counsel failed to 

conduct a reasonable pretrial investigation, and filed a motion 

to suppress key evidence (taken from [Appellant’s] pockets 

inside the residence where [Appellant] was present, that 

established a reasonable expectation of privacy).

[2.] The [PCRA] court abused its discretion in finding no merit 

to the claims raised in the PCRA petition, and denying the 

petition alleging trial counsel’s ineffectiveness without a 

hearing, insofar as [Appellant] claimed in his PCRA petition 

____________________________________________

1 On March 16, 2020, the Pennsylvania Supreme Court declared a general, 

statewide judicial emergency because of the coronavirus that causes 

COVID-19. In re: General Statewide Judicial Emergency, 228 A.3d 1281 

(Pa. 3/16/20) (per curiam). In its subsequent orders, the Supreme Court 

expanded the scope and extended the length of the judicial emergency. 

Further, as is relevant to the case at bar, the Supreme Court generally 

suspended “all time calculations for purposes of time computation relevant to 

court cases or other judicial business, as well as time deadlines.” See In re: 

General Statewide Judicial Emergency, 228 A.3d 1283 (Pa. 3/18/20) (per 

curiam). As to the general suspension of time calculations and deadlines, on 

April 28, 2020, the Supreme Court ordered: “legal papers or pleadings (other 

than commencement of actions where statutes of limitations may be in issue) 

which are required to be filed between March 19, 2020, and May 8, 2020, 

generally shall be deemed to have been filed timely if they are filed by close 

of business on May 11, 2020.” In re: General Statewide Judicial 

Emergency, 230 A.3d 1015 (Pa. 4/28/20) (per curiam) (emphasis omitted).

The trial court dismissed Appellant's petition on March 3, 2020. Thus, in the 

absence of the general, statewide judicial emergency, Appellant's notice of 

appeal would have been due on or before April 2, 2020. See Pa.R.A.P. 903(a). 

However, the Pennsylvania Supreme Court's April 28, 2020 order extended 

Appellant's filing date to May 11, 2020; and, since Appellant filed his notice of 

appeal on April 29, 2020, Appellant's notice of appeal is timely.
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that [trial counsel] failed to object at trial to the witnesses[’]

testimony, that [Appellant’s] window was the only window 

facing the area where drugs were found outside the 

residence, (photos of the property would have disproved this, 

as well as the [officers’] inconsistent testimony that 

[Appellant] was in the third floor and second floor bedroom, 

or an interview before trial, or questions at trial to this 

witness) who testified, a simple question from counsel as to 

who else had access to this area would have raised a 

reasonable doubt as to [Appellant’s] culpability, since the 

affidavit in support of the search warrant authorizing the 

search did not set forth probable cause to search the 

residence as the facts known to the issuing authority did not 

establish that it was more likely than not or probable that 

contraband or evidence of a crime was located in the property

searched, because the items sought in the warrant were not 

contraband or evidence of criminal activity.

[3.] The [PCRA] court abused its discretion in finding no merit 

to the claims raised in the PCRA petition, and denying the 

petition alleging trial counsel’s ineffectiveness without a 

hearing, where court-appointed PCRA counsel failed to 

present any of [Appellant’s] meritorious claims with 

argument or analysis which constituted deficient performance 

under the first prong of Strickland v. Washington[, 466 

U.S. 668 (1984)] analysis – meaning that PCRA counsel’s 

representation fell below an objective standard of 

reasonableness. Relief is unavailable for undeveloped claims 

with insufficient argument which is the functional equivalent 

of no argument at all.

[4.] The [PCRA] court abused its discretion in finding no merit 

to the claims raised in the PCRA petition, and denying the 

petition alleging trial counsel’s ineffectiveness without a 

hearing, where PCRA counsel characterized all of the issues 

to be presented at an upcoming evidentiary hearing which 

prompted [Appellant] to file written objections to counsel . . 

. and then to the court. . . . [Appellant] also wrote a letter 

to Judge Kennedy [] that was not docketed, and a motion to 

the court [], requesting that the court remove counsel and 

appoint new counsel. A lawyer performs deficiently when 

there is simply no basis to believe that counsel’s failure to 

argue the issue on appeal was a strategic choice. PCRA 

counsel did not appropriately discharge his obligation to 

review the entire case file and effectively communicate with 

[Appellant] considering counsel’s caseload. [PCRA counsel] 

never met with [Appellant], never asked any questions, 

never explored what [Appellant] meant or what he intended 

with the pro se PCRA petition, and never followed up with 

[Appellant] or [Appellant’s] wife, who reached out on 

[Appellant’s] behalf.

[5.] The [PCRA] court abused its discretion in finding no merit 

to the claims raised in the PCRA petition, and denying the 
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petition alleging trial counsel’s ineffectiveness without a 

hearing, where [Appellant] not only filed objections to 

counsel’s amended PCRA petition paragraph by paragraph, 

but wrote directly to the court about counsel’s representation 

and interpretations of the issues presented in the amended 

PCRA petition, that did not contain everything needed to 

challenge trial counsel’s representations. [Appellant] 

informed the court that there was a conflict of interest, and 

that PCRA counsel’s amended petition is so incomplete that 

any sort of relief relative to those issues could be seriously 

compromised, and none of the issues raised were preserved 

by trial or PCRA counsel who are ineffective as a result, 

specifically the insufficiency of the evidence claim that was 

conflated and improper, not preserved by trial counsel.

[6.] The [PCRA] court abused its discretion in finding no merit 

to the claims raised in the PCRA petition, and denying the 

petition alleging trial counsel’s ineffectiveness without a 

hearing, where trial counsel failed to object at sentencing to 

the claims by [the Commonwealth], that while [Appellant] 

was out on bail in this case, he was arrested for selling 

firearms in the federal case which is false. [Appellant] was 

charged with possession of firearms, not charged with or 

convicted of anything else. That trial counsel failed to 

properly preserve the IADA violations where no investigation 

was had into these claims. That [Appellant] was given a state 

detainer [] while on illegal IADA transfer from FCI 

Cumberland from 2/19/16 to 4/13/16, with a serious medical 

condition and without medical clearance, and without notice 

of his rights or a transfer hearing under the IADA. That trial 

counsel failed to object at sentencing to false information 

used by [the Commonwealth] that [Appellant] was convicted 

of [two] robberies which are [four] point offenses, and the 

year of custody credit awarded has never been credited to 

the sentence in any sentencing order by the court.

Appellant’s Rule 1925(b) Statement, 4/29/20, at 1-2 (some capitalization 

omitted).

On May 29, 2020, Appellant’s counsel filed an application to withdraw. 

As a result, this Court remanded the case to the PCRA court and instructed 

the PCRA court to “conduct an on-the-record determination as to whether 

Appellant’s waiver of counsel is knowing, intelligent and voluntary, pursuant 

to Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).” Order, 6/17/21, at 

1.
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On November 13, 2020, the PCRA court entered the following order:

AND NOW, after a hearing held pursuant to 

[Commonwealth v. Grazier], during which the [PCRA]

court conducted an on-the-record determination of 

[Appellant’s] voluntariness of waiver of counsel, the court 

found [Appellant] knowingly, intelligently and voluntarily 

waived his right to counsel.

IT IS ORDERED AND DECREED, that [Appellant], having 

made a lawful waiver of his right to counsel, is permitted to 

proceed pro se in the above matter.

PCRA Court Order, 11/13/20, at 1.

Appellant raises one claim in his pro se brief:

Did the PCRA court commit reversible error when it denied 

Appellant’s PCRA petition alleging ineffective assistance of 

counsel on the basis that his trial attorney failed to seek a 

plea offer prior to trial?

Appellant’s Brief at 3.

Appellant’s claim on appeal is waived, as Appellant did not raise the 

issue in his Rule 1925(b) statement. Pa.R.A.P. 1925(b)(4)(vii) (“[i]ssues not 

included in the [concise statement of errors complained of on appeal] . . . are 

waived”); Commonwealth v. Nobles, 941 A.2d 50, 52 (Pa. Super. 2008) 

(“[i]t is of no moment that appellant was not ordered to file a 1925(b) 

statement. Appellant filed his statement contemporaneously with his notice 

of appeal. Accordingly, there was no need for the trial court to order him to 

file a 1925(b) statement. If we were to find that because he was not ordered 

to file a 1925(b) statement, he has not waived the issues he neglected to raise 
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in it, we would, in effect, be allowing appellant to circumvent the requirements 

of the Rule”) (quotations and citations omitted).

Moreover, even if Appellant had not waived his claim, the claim fails on 

its merits.

“We review a ruling by the PCRA court to determine whether it is 

supported by the record and is free of legal error. Our standard of review of 

a PCRA court's legal conclusions is de novo.” Commonwealth v. Cousar, 

154 A.3d 287, 296 (Pa. 2017) (citations omitted).

To be eligible for relief under the PCRA, the petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

resulted from “one or more” of the seven, specifically enumerated 

circumstances listed in 42 Pa.C.S.A. § 9543(a)(2). One of these statutorily 

enumerated circumstances is the “[i]neffective 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.” 42 Pa.C.S.A. § 9543(a)(2)(ii). 

Counsel is presumed to be effective and “the burden of demonstrating 

ineffectiveness rests on [A]ppellant.” Commonwealth v. Rivera, 10 A.3d 

1276, 1279 (Pa. Super. 2010). To satisfy this burden, Appellant must plead 

and prove by a preponderance of the evidence that:

(1) his underlying claim is of arguable merit; (2) the 

particular course of conduct pursued by counsel did not have 

some reasonable basis designed to effectuate his interests; 

and, (3) but for counsel’s ineffectiveness, there is a 
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reasonable probability that the outcome of the challenged 

proceedings would have been different.

Commonwealth v. Fulton, 830 A.2d 567, 572 (Pa. 2003). As this Court has 

explained:

A claim has arguable merit where the factual averments, if 

accurate, could establish cause for relief. See 

Commonwealth v. Jones, 876 A.2d 380, 385 (Pa. 2005) 

(“if a petitioner raises allegations, which, even if accepted as 

true, do not establish the underlying claim . . . , he or she 

will have failed to establish the arguable merit prong related 

to the claim”). Whether the facts rise to the level of arguable 

merit is a legal determination.

The test for deciding whether counsel had a reasonable basis 

for his action or inaction is whether no competent counsel 

would have chosen that action or inaction, or, the alternative, 

not chosen, offered a significantly greater potential chance of 

success. Counsel’s decisions will be considered reasonable if 

they effectuated his client's interests. We do not employ a 

hindsight analysis in comparing trial counsel's actions with 

other efforts he may have taken. 

Prejudice is established if there is a reasonable probability 

that, but for counsel’s errors, the result of the proceeding 

would have been different. A reasonable probability is a 

probability sufficient to undermine confidence in the 

outcome.

Commonwealth v. Stewart, 84 A.3d 701, 707 (Pa. Super. 2013) (some 

quotations and citations omitted). “A failure to satisfy any prong of the test 

for ineffectiveness will require rejection of the claim.” Id.

Appellant claims that his trial counsel was ineffective because counsel 

failed to seek a plea offer from the Commonwealth. Appellant’s Brief at 5. 

According to Appellant:

Prior to trial in this case, Appellant, who was seriously ill and

required surgery, expressed to his trial attorney that he didn't
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believe he could physically sit through a trial, and that he had 

a desire to accept responsibility for his conduct and accept

punishment for that conduct.

In keeping with Appellant's thoughts, he directed trial counsel 

to approach the Commonwealth to seek a plea offer. On at 

least two occasions, prior to the trial, Appellant would make 

this request, to no avail.

Had trial counsel approached the Commonwealth for a plea

offer, there is a substantial likelihood that one would have 

been extended . . . and that offer would have resulted in a 

substantially lesser prison term than the one imposed after 

[the] trial.

Appellant’s Brief at 4-5.

Appellant’s claim fails. Certainly, even assuming, arguendo, that 

counsel was ineffective for failing to seek a plea offer, Appellant cannot 

demonstrate that he was prejudiced by counsel’s inaction. See 

Commonwealth v. Chmiel, 889 A.2d 501, 540 (Pa. 2005) (“we need not 

determine whether the first two prongs of [the ineffective assistance of 

counsel] standard are met if the record shows that [a]ppellant has not met 

the prejudice prong”). At the outset, there is no evidence that the 

Commonwealth was willing to extend a plea offer to Appellant. See 

Commonwealth’s Brief at 9 (“[Appellant] has not shown that the 

Commonwealth would have offered a plea bargain”); see also Weatherford 

v. Bursey, 429 U.S. 545, 561 (1977) (“there is no constitutional right to plea 

bargain; the prosecutor need not do so if he prefers to go to trial”). Further, 

it is utter speculation for Appellant to declare that the hypothetical plea offer 

“would have resulted in a substantially lesser prison term than the one 
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imposed after [the] trial.” See Appellant’s Brief at 5. And, as our Supreme 

Court has held: “[c]laims of ineffective assistance of counsel that are based 

on speculation and conjecture do not adequately establish the degree of 

prejudice necessary; namely, that there is a reasonable probability that, but 

for counsel's errors, the outcome of the proceeding would have been 

different.” Commonwealth v. Pursell, 724 A.2d 293 (Pa. 1999). 

Therefore, even if Appellant had not waived his claim on appeal, the 

claim fails on its merits.

Order affirmed. Jurisdiction relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 5/17/21