Com. v. Bowen, D. ( 2016 )

J-S03002-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
DAVID BOWEN
Appellant No. 519 EDA 2015
Appeal from the PCRA Order January 23, 2015
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0012706-2008
CP-51-CR-0012707-2008
CP-51-CR-0012708-2008
BEFORE: FORD ELLIOTT, P.J.E., OTT, J., and JENKINS, J.
MEMORANDUM BY OTT, J.: FILED AUGUST 08, 2016
David Bowen appeals, pro se, from the order entered January 23,
2015, in the Philadelphia County Court of Common Pleas dismissing his first
petition for collateral relief filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S. §§ 9541-9546. Bowen seeks relief from the judgment
of sentence of an aggregate six to 12 years’ imprisonment imposed on June
25, 2009, following his jury conviction of two counts of aggravated assault
and one count of firearms not to be carried without a license. 1 On appeal,
he challenges the sufficiency of the evidence, and the trial court’s jury
instructions. For the reasons set forth below, we affirm.
____________________________________________
1
18 Pa.C.S. §§ 2702(a)(1) and (2), and 6106(a)(1).
J-S03002-16
The facts underlying Bowen’s conviction were summarized by a panel
of this Court on direct appeal as follows:
At approximately 11:00 pm on August 21, 2008, Philadelphia
police officers Paul Tinneny, Edgar Ruth and Robert Sellers
responded to a report of gunshots fired on the 400 block of
Hobart Street in Philadelphia, Pennsylvania. In the area, Officer
Ruth observed Bowen in the rear alley of the 5800 block of
clutching what appeared to be a gun concealed inside of his
waistband. Officer Ruth ordered Bowen to stop and drop the
firearm. As Officers Ruth and Sellers pursued Bowen into Carroll
Park, Bowen removed a silver gun from his waistband, turned
and pointed the gun at Officer Ruth from approximately ten feet
away. At that moment, Officer Tinneny fired his weapon at
Bowen from thirty feet away. The shot missed, and Bowen
continued to run, after which he was quickly detained and
arrested. Officer Sellers recovered an operable .38 special
revolver loaded with hollow point bullets. Following his arrest,
Bowen waived his Miranda rights and provided a police
statement in which he denied firing the shots that initially
garnered police attention.
Commonwealth v. Bowen, 47 A.3d 1233 [2158 EDA 2009, at 1-2] (Pa.
Super. 2012) (unpublished memorandum).
Bowen proceeded to a jury trial on charges of aggravated assault and
firearms not to be carried without a license. On June 21, 2009, the jury
returned a verdict of guilty on all charges. Thereafter, on June 25, 2009,
the trial court sentenced Bowen to a term of five to 10 years’ imprisonment
on one count of aggravated assault,2 and a consecutive term of one to two
____________________________________________
2
We note Bowen states, in his pro se brief, that he was sentenced to a
“mandatory sentence” on this charge. Bowen’s Brief at 4. We find nothing
to support this contention in the record. Rather, during the sentencing
hearing, the Commonwealth asserted that, for this charge, Bowen had a
prior record score of two, and an offense gravity score of 10. See N.T.,
(Footnote Continued Next Page)
-2-
J-S03002-16
years’ imprisonment for the firearms charge.3 Bowen filed a timely direct
appeal challenging the sufficiency of the evidence supporting his aggravated
assault conviction. See Bowen, supra. A panel of this Court affirmed in an
unpublished memorandum decision, and, on December 27, 2012, the
Pennsylvania Supreme Court denied his petition for allowance of appeal.
See Commonwealth v. Bowen, 60 A.3d 534 (Pa. 2012).
Thereafter, on November 26, 2013, Bowen filed a timely, pro se PCRA
petition, asserting a general claim of ineffectiveness of trial counsel and a
challenge to the sufficiency of the evidence supporting his charge of
aggravated assault. The same day, he also filed a motion to proceed pro se.
The PCRA court conducted a Grazier4 hearing on March 17, 2014, at the
conclusion of which it granted Bowen’s motion to proceed pro se.
Thereafter, Bowen filed a supplemental PCRA petition challenging (1) the
sufficiency and weight of the evidence supporting his aggravated assault
_______________________
(Footnote Continued)
6/25/2009, at 11. Therefore, the standard sentencing guidelines range was
36 to 48 months’ imprisonment. Id. See also 204 Pa. Code § 303.16(a).
Additionally, the Commonwealth asked the court to apply the deadly weapon
(used) enhancement, which increased Bowen’s standard guideline range to
54 to 66 months’ imprisonment. N.T., 6/25/2009, at 17. See also 204
Pa.Code § 303.17(b). There is no mention during the hearing of the
imposition of a mandatory minimum sentence, nor is there an indication on
the docket that the Commonwealth notified Bowen of its intent to request a
mandatory sentence.
3
No further penalty was imposed on the second aggravated assault charge.
4
Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).
-3-
J-S03002-16
conviction, and (2) the ineffectiveness of trial counsel for failing to seek
suppression of his statement to police. On December 5, 2014, the PCRA
court provided Bowen with notice, pursuant to Pa.R.Crim. 907, of its intent
to dismiss the petition without first conducting an evidentiary hearing.
Bowen did not respond, and, on January 23, 2015, the court entered an
order dismissing his PCRA petition. This timely appeal followed.5
Bowen raises two issues on appeal. First, he challenges the sufficiency
of the evidence supporting his conviction of aggravated assault. Second, he
argues the trial court’s jury instructions were erroneous.6
When considering a PCRA court’s denial of relief, we must bear in
mind:
Our standard of review of an order denying PCRA relief is
whether the record supports the PCRA court’s determination and
whether the PCRA court’s decision is free of legal error. The
PCRA court’s findings will not be disturbed unless there is no
support for the findings in the certified record.
Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super. 2014) (internal
citations omitted).
____________________________________________
5
On February 17, 2015, the PCRA court ordered Bowen to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Bowen complied with the court’s directive, and filed a concise statement on
February 26, 2015.
6
We note that Bowen has abandoned his claims asserting the
ineffectiveness of trial counsel.
-4-
J-S03002-16
Further, of particular relevance here, we note that to be entitled to
relief, a petitioner must establish his claims have not been previously
litigated or waived. Commonwealth. v. Keaton, 45 A.3d 1050, 1060 (Pa.
2012). Pursuant to Section 9544(a) of the PCRA, an issue is previously
litigated if, inter alia, “the highest appellate court in which the petitioner
could have had review as a matter of right has ruled on the merits of the
issue.” 42 Pa.C.S. § 9544(a)(2). Moreover, “an issue is waived if the
petitioner could have raised it but failed to do so before trial, at trial, during
unitary review, on appeal or in a prior state postconviction proceeding.” 42
Pa.C.S. § 9544(b).
In his first issue, Bowen argues the evidence was insufficient to sustain
his conviction of aggravated assault because it failed to establish he acted
with the specific intent to injure the victim. However, a challenge to the
sufficiency of the evidence is not a cognizable claim under the PCRA. See
42 Pa.C.S. § 9543(a)(2). Furthermore, this identical claim was raised, and
rejected, on direct appeal. See Bowen, supra, 47 A.3d 1233 [2158 EDA
2009, at 4-5]. Accordingly, it has been previously litigated for purposes of
PCRA review. See 42 Pa.C.S. § 9544(a)(2).
Next, Bowen contends the trial court “rendered an improper jury
instruction based on the Commonwealth’s argument of the said charges of
Aggravated Assault (F-1) and Aggravated Assault (F-2)[.]” Bowen’s Brief at
7. Again, we note a challenge to the court’s jury instructions, absent an
allegation of trial counsel’s ineffectiveness, is not a cognizable claim for
-5-
J-S03002-16
PCRA review. 42 Pa.C.S. § 9543(a)(2). Moreover, this claim is waived for
several reasons. First, Bowen could have raised this claim on direct appeal,
but did not do so. Consequently, it is waived pursuant to Section 9544(b).
See 42 Pa.C.S. § 9544(b). Second, Bowen failed to include a challenge to
the court’s jury instructions in either his initial or supplemental PCRA
petitions. See Commonwealth v. Elliott, 80 A.3d 415, 430 (Pa. 2013)
(holding petitioner waived claim on appeal; it was not raised in PCRA petition
and petitioner did not obtain permission to amend his petition to include the
claim). Third, this claim was not included in Bowen’s Rule 1925(b) concise
statement. Issues not included in a court-ordered concise statement are
waived. Pa.R.A.P. 1925(b)(4)(vii). Accordingly, we need not consider
Bowen’s second issue on appeal.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2016
-6-