Com. v. Bowie, W. ( 2017 )

J-S56043-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
WILLIAM JAMES BOWIE,
Appellant No. 1557 EDA 2015
Appeal from the PCRA Order April 21, 2015
in the Court of Common Pleas of Montgomery County
Criminal Division at No.: CP-46-CR-0005077-2010
BEFORE: BOWES, J., STABILE, J., and PLATT, J.*
MEMORANDUM BY PLATT, J.: FILED OCTOBER 18, 2017
Appellant, William James Bowie, appeals pro se from the order
dismissing his first petition filed pursuant to the Post Conviction Relief Act
(PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.
We take the following relevant facts and procedural history from our
independent review of the certified record. On March 15, 2011, Appellant
was found guilty of two counts of persons not to possess a firearm, and one
count each of possession of a firearm with an altered manufacturer’s
number, unlawful body armor, a small amount of marijuana, and drug
paraphernalia, following a bench trial. On May 19, 2011, the trial court
sentenced him to an aggregate term of not less than eight and a half nor
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* Retired Senior Judge assigned to the Superior Court.
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more than seventeen years’ imprisonment. This Court affirmed Appellant’s
judgment of sentence on July 31, 2013. (See Commonwealth v. Bowie,
2013 WL 11260413, at *1 (Pa. Super. filed July 31, 2013)). Appellant did
not file a petition for allowance of appeal in our Supreme Court.
On November 25, 2013, Appellant filed a timely pro se PCRA petition.1
Appointed counsel moved to withdraw his appearance and filed a
Turner/Finley2 “no merit” letter on March 14, 2014. The court issued
notice of its intent to dismiss the PCRA petition without a hearing on
February 3, 2015, and Appellant filed a pro se response. See Pa.R.Crim.P.
907(1). The court entered its final order dismissing the PCRA petition and
granting counsel’s petition to withdraw on April 21, 2015. Appellant filed a
timely notice of appeal on May 19, 2015.
On July 28, 2015, Appellant filed a timely, court-ordered concise
statement of errors complained of on appeal. See Pa.R.A.P. 1925(b). In
the statement, Appellant raised one issue, claiming that his sentence is
unconstitutional in light of the United States Supreme Court’s decision in
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1 We have applied the prisoner mailbox rule in providing the dates for
Appellant’s pro se filings in this memorandum. See Commonwealth v.
Brandon, 51 A.3d 231, 234 n.5 (Pa. Super. 2012).
2 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa. Super. 1998) (en banc).
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Alleyne v. United States, 133 S.Ct. 2151 (2013).3 (See Rule 1925(b)
Statement, 7/28/15). The PCRA court entered an opinion on December 8,
2016, in which it stated that Appellant’s sentence did not include any
mandatory minimum sentencing provision, and that Alleyne is inapplicable
to his case. See Pa.R.A.P. 1925(a); (see also Trial Court Opinion,
12/08/16, at 2, 7).
On March 13, 2017, Appellant filed in this Court a pro se motion
requesting to amend his Rule 1925(b) statement, to add issues that he
failed to raise, including ineffective assistance of counsel. This Court entered
a per curiam order denying the motion on March 31, 2017.
On appeal, Appellant presents the following questions for our review:
I. Whether the PCRA court erred in not re-evaluating Appellant’s
unconstitutional sentence under the standard set forth in
Alleyne?
II. Whether Appellant should have been allowed to file an
amended/supplemental 1925(b) statement pursuant to the
Pennsylvania and/or U.S. Constitution(s)?
(Appellant’s Brief, at iii) (unnecessary capitalization omitted).
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3 In Alleyne, the United States Supreme Court held “[a]ny fact that, by law,
increases the penalty for a crime is an ‘element’ that must be submitted to
the jury and found beyond a reasonable doubt.” Alleyne, supra at 2155.
“The effect [of Alleyne] was to invalidate a range of Pennsylvania
sentencing statutes predicating mandatory minimum penalties upon non-
elemental facts and requiring such facts to be determined by a
preponderance of the evidence at sentencing.” Commonwealth v.
Washington, 142 A.3d 810, 812 (Pa. 2016) (citation omitted).
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“On appeal from the denial of PCRA relief, our standard of review calls
for us to determine whether the ruling of the PCRA court is supported by the
record and free of legal error.” Commonwealth v. Payne, 2017 WL
3911803, at *5 (Pa. Super. filed Sept. 7, 2017) (citation omitted). “The
PCRA court’s findings will not be disturbed unless there is no support for the
findings in the certified record.” Id. (citation omitted).
In his first claim, Appellant challenges the legality of his sentence
pursuant to Alleyne. (See Appellant’s Brief, at 3). However, Appellant
expressly abandons this issue in his brief, stating that he:
has conceded to the fact that this claim is without merit based
upon the PCRA court’s opinion. The PCRA court pointed out that
the sentence wasn’t imposed mandatory, nor did the
[C]ommonwealth seek a mandatory sentence.
Therefore, [A]ppellant concedes that this claim is without
merit.
(Id.).
Given Appellant’s clear abandonment of his first claim, we have no
reason to address it.
In his second issue, Appellant argues that this Court violated his due
process rights when we did not permit him to file an amended or
supplemental Rule 1925(b) statement. (See id. at 3-5). He also asserts
that the PCRA court failed inform him of his obligation to raise all appellate
issues in the concise statement, in order to preserve them for review. (See
id. at 3-4). We disagree.
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Initially, we find that Appellant’s claim regarding the alleged deficiency
of the PCRA court’s Rule 1925 order is belied by the record. Our review
demonstrates that the court plainly advised: “Appellant is cautioned that any
issue not properly included in the Statement timely filed and served
pursuant to Pa.R.A.P. 1925(b) shall be deemed waived.” (Order, 7/13/15,
at 2). Therefore, the court properly informed Appellant of the consequence
of waiver. See Pa.R.A.P. 1925(b)(3)(iv).
With respect to this Court’s denial of Appellant’s motion to amend his
concise statement, we emphasize that: “Rule 1925 is intended to aid trial
judges in identifying and focusing upon those issues which the parties plan
to raise on appeal. Rule 1925 is thus a crucial component of the appellate
process.” Commonwealth v. Lord, 719 A.2d 306, 308 (Pa. 1998).
Our jurisprudence is clear and well-settled, and firmly
establishes that: Rule 1925(b) sets out a simple bright-line rule,
which obligates an appellant to file and serve a Rule 1925(b)
statement, when so ordered; any issues not raised in a Rule
1925(b) statement will be deemed waived; the courts lack the
authority to countenance deviations from the Rule’s terms; the
Rule’s provisions are not subject to ad hoc exceptions or
selective enforcement[.] . . .
Commonwealth v. Hill, 16 A.3d 484, 494 (Pa. 2011).
Here, Appellant did not seek to amend his concise statement in the
PCRA court, and filed his motion in this Court three months after the PCRA
court issued its Rule 1925(a) opinion, upon his apparent realization that his
Alleyne claim lacked merit. Thus, he deprived the PCRA court of the
opportunity to address the issues he now seeks to raise. Based on our well-
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settled jurisprudence, any claims that he failed to raise in the concise
statement he filed in the PCRA court are waived for appellate review. See
Hill, supra at 494; Lord, supra at 308; see also Pa.R.A.P. 302(a) (“Issues
not raised in the lower court are waived and cannot be raised for the first
time on appeal.”). Therefore, Appellant’s second issue does not merit
relief.4 Accordingly, we affirm the order of the PCRA court.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/18/17
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4 With respect to Appellant’s belief that he should not be held to the same
standards as an attorney in presenting his claims, (see Appellant’s Brief, at
5), we note that although this Court is willing to construe pro se materials
liberally, pro se litigants must comply with procedural rules. See
Commonwealth v. Lyons, 833 A.2d 245, 252 (Pa. Super. 2003), appeal
denied, 879 A.2d 782 (Pa. 2005).
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