Com. v. Bowen, J. ( 2018 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JOSHUA BOWEN :
:
Appellant : No. 3159 EDA 2016
Appeal from the PCRA Order September 22, 2016
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-1200331-2004
BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*
MEMORANDUM BY BOWES, J.: FILED MAY 21, 2018
Joshua Bowen appeals from the order dismissing his second PCRA
petition as untimely. We affirm.
We previously set forth the facts underlying Appellant’s convictions in
our decision affirming his judgment of sentence, which we adopted from the
trial court opinion.
On the night of August 21, 2004, [Appellant] (also known as
“Wop Wop”) and Jermaine Goss fought over five dollars ($5.00)
that Goss owed [Appellant] for a bag of marijuana Goss had
previously purchased from [Appellant]. The fight took place as a
group of people gathered at the corner of 15th and Hazard
Street, Philadelphia. The fight initially began as a verbal
confrontation but escalated when [Appellant] punched Goss. The
two men wrestled each other to the ground where they
continued to yell at one another. The fight ended.
[Appellant] got up, entered his house, located at 2538 Hazard
Street, but when [Appellant] reemerged from the house, he
appeared to be holding something underneath his shirt in the
waistband of his pants. [Appellant’s] neighbor, Keith Furman,
* Retired Senior Judge Assigned to the Superior Court.
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testified that the object fell from the waistband of [Appellant’s]
pants down his leg and he was able to identify the object as a .9
millimeter gun. By this point, Jermaine Goss had left the
immediate area and was at his house located at 1510 West
Hazard Street. The gathered crowd broke up soon thereafter.
On the following day, August 22, 2004, [Appellant] approached
Jermaine Goss, Keith Furman, and another man, “Danny”, who
were sitting on the front steps of Furman’s house, located at
2532 North 15th Street. [Appellant] told Furman that he was still
angry over the fight that took place the night before and that he
should have shot Furman the night before. Furman laughed in
response. “Danny” left and [Appellant] left.
[Appellant] entered his home, 2528 Hazard Street and on
reemerging from his house he told Goss that he was going to die
because he owed [Appellant] money. [Appellant] told Furman
that he was also going to die because he would be a witness to
Goss’s murder. After saying this to the two men, [Appellant]
once again went into his house only to come out, carrying a
telephone. [Appellant] placed a call and once again approached
the two men sitting on the steps. As [Appellant] approached the
two men, two other men approached Goss and Furman as well.
One of the two men asked [Appellant] if these were the “boys”
giving [Appellant] trouble. [Appellant] responded that yes, these
were the boys giving him trouble.
Upon hearing [Appellant’s] answer, one of the two unidentified
men pulled a gun from his waistband. [Appellant] also pulled a
.9 millimeter gun from the waistband of his pants. Seeing this,
Furman got up and ran north on 15th Street towards Lehigh
Street. As Furman reached Oakdale Street, he heard ten (10)
gunshots. Furman continued running until he got to the
intersection of 30th Street and Lehigh Street, because that was
the area where he believed Jermaine Goss’s birth father lived.
Furman was able to find out where Goss’s father, Allen Goss,
lived from a woman on the street. Furman found Allen Goss and
told him that he and his son were approached by “Wop Wop”
and two other armed men outside of Furman’s house, that he
ran and that he had heard gun shots.
Police Officer Danielle White arrived at 2530 Hazard Street
where she found Goss, gasping for air, lying in a puddle of blood.
Goss was transported to Temple University Hospital where he
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died. On August 23, 2004, the day after the murder, Philadelphia
Police picked up Furman for questioning. Furman made a
statement to police and agreed to have it videotaped.
[Appellant] was then arrested the same day.
Commonwealth v. Bowen, 918 A.2d 782, 2956 EDA 2005 at *2-3
(Pa.Super. 2006). Appellant did not file for further review with our Supreme
Court. Therefore, his judgment of sentence became final thirty days after
our decision, i.e., January 12, 2007.
Appellant filed a timely PCRA petition, and appointed counsel filed a no
merit letter and received permission to withdraw. The petition was denied
on October 2, 2008, and Appellant thereafter filed a pro se notice of appeal
from the order, which was docketed at 2957 EDA 2008. We ultimately
dismissed that appeal on April 7, 2010, for the failure to file a brief.
On March 7, 2011, Appellant filed the PCRA petition at issue herein,
seeking reinstatement of his right to appeal the October 2, 2008 dismissal of
his first PCRA petition. The petition lingered, prompting Appellant to file
supplemental petitions in 2012 and 2015. The PCRA court issued a notice of
intent to dismiss on May 27, 2016. Following Appellant’s objections, the
PCRA court thereafter dismissed the petition on September 23, 2016.
Appellant filed a timely notice of appeal. Appellant complied with the order
to file a Pa.R.A.P. 1925(b) statement, and the PCRA court issued its
responsive opinion. The matter is now ready for review of the claims raised
by Appellant:
I. Whether Appellant's incompetence qualifies under the
statutory [newly]-discovered fact exception, on the basis that his
incompetence rendered Appellant unable to timely discover the
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factual basis for his post conviction claims on appeal, following
the dismissal of his initial post conviction collateral relief act
under the purview of 42 Pa.C.C. §9545(b)(1)(ii)?
II. Whether Appellant is entitled to the reinstatement of his PCRA
appellate rights as a result of Attorney Lammendola's
abandonment of Appellant during his initial post conviction
collateral relief act proceeding?
III. Whether Appellant's mental incompetence raises material
issues of fact requiring a hearing pursuant to Pa.R.Crim.P.
908(a)(2)?
Appellant’s brief at 2.
Generally, a petition for relief under the PCRA must be filed within one
year of the date the judgment of sentence became final. Where, as here,
the petition is facially untimely, the PCRA petitioner is required to allege and
prove an exception to the one-year time bar. These exceptions are:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this
Commonwealth or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown
to the petitioner and could not have been ascertained by the
exercise of due diligence; or
(iii) the right asserted is a constitutional right that was
recognized by the Supreme Court of the United States or the
Supreme Court of Pennsylvania after the time period provided in
this section and has been held by that court to apply
retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii). Additionally, any petition seeking to invoke
one of these three exceptions “shall be filed within 60 days of the date the
claim could have been presented.” 42 Pa.C.S. § 9545(b)(2). “This time
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constraint is jurisdictional in nature, and is not subject to tolling or other
equitable considerations.” Commonwealth v. Spotz, 171 A.3d 675, 678
(Pa. 2017) (citation omitted).
Presently, Appellant relies on the § 9545(b)(1)(ii) exception. He
alleges that the pertinent newly-discovered fact is that he was mentally
incapacitated during the time frame in which his brief was due. In support,
Appellant relies upon the mental health evaluation which was prepared in
advance of sentencing. The report states, in pertinent part:
Psychological testing does find a number of disturbed thought
processes, typical of individuals who are quite emotionally
disturbed. He seems to have a very poor fund of common
information and intellectually, he appears to be functioning in
the mild range of mental retardation. He tells me that he cannot
handle money, nor can he go about the city on his own.
Clinically, he appears to have an IQ of about 67.
Mental Health Evaluation, 7/29/05 at 2-3.1
In Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2004), our Supreme
Court stated that, in some circumstances, mental incapacity could satisfy the
newly-discovered fact exception:
The essence of appellant's claim is that his alleged mental
incapacity rendered the facts upon which his substantive PCRA
claims would be based unknowable to him until the point at
which he became competent, and thus qualifies him for review
under the PCRA's after-discovered evidence exception to the
PCRA time-bar. Appellant also claims that he should be
permitted to attempt to prove that he filed his pro se PCRA
____________________________________________
1This document was attached to the PCRA pleadings and the Commonwealth
does not dispute its veracity.
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petition within sixty (60) days of the point where he became
competent. Although the lower courts are correct that there is no
express exception for mental incapacity found in Section
9545(b)(1), we are satisfied that, in some circumstances, claims
that were defaulted due to the PCRA petitioner's mental
incompetence may qualify under the statutory after-discovered
evidence exception.
Id. at 335–36. Subsequent case law has described Cruz as follows:
Only under a very limited circumstance has the Supreme Court
ever allowed a form of mental illness or incompetence to excuse
an otherwise untimely PCRA petition. Thus, the general rule
remains that mental illness or psychological condition, absent
more, will not serve as an exception to the PCRA's jurisdictional
time requirements.
Commonwealth v. Monaco, 996 A.2d 1076, 1080–81 (Pa.Super. 2010)
(citations omitted). Additionally, in Commonwealth v. Liebensperger,
904 A.2d 40, 47 (Pa.Super. 2006), we described Cruz as involving highly
unusual facts:
The unique facts of Cruz allow us to distinguish it from the
instant case. In Cruz, the appellant was essentially
“lobotomized” as a result of a self-inflicted gunshot wound, and
could not discuss the facts of his case. In our case, Appellant
suffered no similar physical injury to his brain.
Id. at 47.
Presently, we find that the materials relied upon by Appellant do not fit
the Cruz standard as he likewise has failed to establish any type of similar
physical injury that would prevent him from knowing the nature of his
claims. Indeed, the facts contained in the July 2005 report do not establish
any type of mental incompetence. Thus, assuming arguendo that Appellant
could not recover the mental health report in the exercise of due diligence
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prior to 2011, the report fails to establish that Appellant’s situation is
comparable in any way to Cruz.
The essence of Cruz was that the petitioner could not participate
meaningfully in his own proceedings during the relevant timeframes. Here,
however, Appellant’s documents establish only that his IQ is low, which does
not satisfy the exception. Liebensperger, supra at 47 (“In his diagnostic
impression, Dr. Rotenberg noted that Appellant suffered from . . . Mild
Mental Retardation.”). Furthermore, Appellant’s own brief indicates that his
mental capacities posed difficulties only in the sense that he required help
from other inmates in preparing his documents, and he states that he has
“the functioning mental state of a mentally retarded individual[.]”
Appellant’s brief at 7. That circumstance, however, does not establish that
Appellant did not know the nature of his claims, as he avers in his brief. It
means only that he had difficulties preparing his brief.
In this respect, accepting arguendo that Appellant’s low IQ prevented
his meaningful participation and excuses his failure to file a brief, it follows
that he was forever unable to participate from the case’s inception. Absent
Appellant somehow improving his IQ in the intervening years, it would
therefore seem that Appellant’s mental capacities would still hinder his
preparation.
Finally, Appellant fails to explain how he has now sufficiently recovered
from his purported inability to meaningfully participate. Indeed, Appellant
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does not state that his condition has somehow improved since the 2005
report. As we explained in Liebensperger:
Comparatively, Appellant in the instant case has offered nothing
to indicate when, if ever, the crucial point in time at which he
passed from incompetence to competence may have actually
occurred, discussing only his chronic mental illness. Appellant
has failed to offer any evidence or suggested reasons as to the
cause of his lapse into incompetence after Dr. Rotenberg's
evaluation. Similarly, Appellant has not asserted in his petition
even an estimate of the timing or duration of the periods of
incompetence he allegedly suffered after his evaluation. Further,
Appellant has made no assertions, and there is nothing in the
record to indicate, that his condition is of the type that may have
recently improved or changed so that he has only recently
returned to the degree of competence required to file a PCRA
petition.
Liebensperger, supra at 48.
The same is true herein. There is nothing in the record to indicate that
his condition was of the type that (1) actually prevented his meaningful
participation back in 2010 when his failure to file a brief resulted in the
dismissal of his appeal, and (2) that the purported condition excusing his
failure to file a brief has improved to a degree that he is now competent to
do so where he formerly was not. Therefore, we conclude that Appellant
failed to establish the applicability of the exception, and we therefore affirm.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 5/21/18
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