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[U] Commonwealth v. Moore

Superior Court of Pennsylvania

February 28, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
ROBERT MOORE, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order of May 22, 2013 In the Court of Common Pleas of Delaware County Criminal Division at No(s): CP-23-CR-0001059-2012

BEFORE: GANTMAN, OLSON AND WECHT, JJ.

MEMORANDUM

OLSON, J.

Appellant, Robert Moore, appeals pro se from an order entered on May 22, 2013 in the Criminal Division of the Court of Common Pleas of Delaware County that denied his first petition filed pursuant to the Post Conviction Relief Act ("PCRA"), 42 Pa.C.S.A. §§ 9541-9546. We dismiss this appeal because of Appellant's failure to file a brief that conforms to our procedural rules.

The historical facts are not in dispute. On October 18, 2011, at 7:05 p.m., three officers serving with the Clifton Heights Police Department were dispatched to Appellant's residence because of reports that Appellant was holding a gun to his head. Upon arrival, Appellant's mother admitted the officers into the residence and advised them that her son was in possession of firearms.

The officers made their way to the third floor of the residence where Appellant's bedroom was located. After several attempts to make verbal contact with Appellant, one of the officers was able to push Appellant's bedroom door open. Once the door was opened, the officers observed Appellant sitting on his bed with a rifle pointed at the police. The officers ordered Appellant to drop his weapon and show his hands. When Appellant failed to comply, one of the officers twice unsuccessfully deployed a taser. Thereafter, Appellant pointed his rifle at one of the officers and fired a single round. One of the officers then returned fire and the door to Appellant's bedroom slammed shut.

The officers began instructing Appellant to come out with his hands raised. Appellant, with rifle in hand, re-opened his bedroom door but refused repeated orders to drop his weapon. One of the officers fired a round from his patrol rifle and Appellant immediately closed his bedroom door. Eventually, in response to verbal commands, Appellant agreed to come out of his bedroom. The officers were able to subdue and arrest Appellant after he emerged.

The PCRA summarized the ensuing procedural history as follows:

On October 18, 2011, [Appellant] was arrested and charged with three counts of attempted criminal homicide, three counts of attempted murder in the first degree, three counts of recklessly endangering another person, one count of possessing an offensive weapon, three counts of assault on a police officer, three counts of possessing a weapon with intent to employ it criminally, and six counts of aggravated assault.
On June 18, 2012, Appellant entered [] a negotiated guilty plea [at a plea hearing during which a thorough colloquy was conducted.[1] Appellant pleaded guilty to one count of attempted murder of a police officer. [At the plea hearing, ] Appellant was informed that attempted murder is a felony of the first degree, carrying a maximum sentence of up to 20 years [of] imprisonment and a fine of up to $50, 000[.00]. Appellant also pleaded guilty to two counts of aggravated assault of a police officer. Appellant was informed that aggravated assault convictions are felonies of the first degree, which carry a maximum sentence of up to 20 years [of] imprisonment and a fine up to $25, 000[.00] per conviction.
The sentences imposed were those negotiated between counsel for [Appellant] and the Deputy District Attorney. The sentence for the conviction on attempted murder was [nine] to 18 years in prison. The sentence for the conviction on the first count of aggravated assault was [nine] to 18 years in prison, to run consecutive to the attempted murder conviction. The sentence for the conviction on the second count of aggravated assault was [nine] to 18 years in prison, which was to run concurrent with the above sentences. The terms of the plea agreement were made clear to Appellant and the total sentence was 18 to 36 years in a state correctional institution.
On or about November 30, 2012, Appellant filed a timely [PCRA p]etition alleging that his trial counsel . . . provided ineffective assistance during his plea agreement. Because this was Appellant's first PCRA petition, [counsel] was appointed . . . on December 7, 2012.
On April 8, 2013, [PCRA counsel] filed [] a "no merit" letter and an application to withdraw his appearance as PCRA counsel, pursuant to [Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc)] and Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988). The PCRA court agreed with [PCRA counsel's] contentions that Appellant's claims were without merit. [Accordingly, on April 23, 2013, the PCRA court granted counsel's application to withdraw and forwarded a notice of intent to dismiss without a hearing pursuant to Pa.R.Crim.P. 907, explaining to] Appellant [] that he was unable to meet the standard of ineffective assistance of counsel under [Strickland v. Washington, 466 U.S. 668 (1984)] because there was no arguable merit to his claims. Appellant also failed to show that counsel's performance ...

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