Com. v. Moore, J.
2795 EDA 2015
| Pa. Super. Ct. | Dec 16, 2016Background
- In April 2008 Moore was involved in a shooting at a Philadelphia "speakeasy." He was charged with murder, attempted murder, various assault counts, three VUFA counts, and persons not to possess firearms (Section 6105, "VUFA").
- The jury acquitted Moore of murder and attempted murder but convicted him of possessing an instrument of crime (PIC) and, after bifurcated proceedings, of persons not to possess a firearm.
- On direct appeal the Superior Court reversed the PIC conviction; the Pennsylvania Supreme Court granted review and reinstated the PIC conviction, allowing inconsistent verdicts. Commonwealth v. Moore, 103 A.3d 1240 (Pa. 2014).
- Moore filed a pro se PCRA petition arguing he was not prohibited by Section 6105 because the triggering conviction was allegedly converted to theft; counsel later filed a Turner/Finley "no merit" letter and the PCRA court gave Rule 907 notice.
- In response to the Rule 907 notice Moore raised two new claims: (1) his five-to-10 year firearms sentence was an unconstitutional mandatory minimum in light of Alleyne; and (2) application of Section 6105 to his pre-1973 triggering conviction violated the Ex Post Facto Clause. The PCRA court dismissed the petition on July 17, 2015.
- This appeal followed; the Superior Court declined to quash as untimely and affirmed the PCRA court, rejecting Moore’s Alleyne and ex post facto claims.
Issues
| Issue | Plaintiff's Argument (Moore) | Defendant's Argument (Commonwealth) | Held |
|---|---|---|---|
| Alleyne challenge to firearms sentence | The 5–10 year term was effectively a mandatory minimum imposed under 42 Pa.C.S. § 9712 without jury findings, violating Alleyne. | The court did not impose a § 9712 mandatory minimum; sentence was within guideline maximum based on REFEL score, so Alleyne does not apply. | Affirmed: no mandatory minimum was imposed, so Alleyne claim fails. |
| Ex post facto challenge to Section 6105 application | Applying § 6105 to a 1972/1973 triggering conviction retroactively aggravates punishment and violates the Ex Post Facto Clause. | Claim was not raised in the PCRA petition and is waived; moreover, prior law (1939 Penal Code) already prohibited firearm possession by those convicted of crimes of violence, so no ex post facto effect. | Affirmed: claim waived; alternatively, no ex post facto violation because predecessor law imposed a similar firearm prohibition. |
Key Cases Cited
- Alleyne v. United States, 133 S.Ct. 2151 (2013) (any fact increasing punishment must be found by a jury)
- Commonwealth v. Moore, 103 A.3d 1240 (Pa. 2014) (Pa. Supreme Court reinstating PIC conviction despite inconsistent acquittals)
- Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (interpreting Alleyne impact on mandatory-minimum statutes)
- Commonwealth v. Hopkins, 117 A.3d 247 (Pa. 2015) (holding unconstitutional provisions of mandatory-minimum statutes are not severable)
- Commonwealth v. Layton, 307 A.2d 843 (Pa. 1973) (predecessor Penal Code prohibited firearm possession by persons convicted of crimes of violence)