Com. v. Bowser, T. ( 2022 )

J-A06016-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
TERRY LYNN BOWSER :
:
Appellant : No. 619 WDA 2021
Appeal from the PCRA Order Entered April 8, 2021
In the Court of Common Pleas of Mercer County
Criminal Division at No(s): CP-43-CR-0001082-2016
BEFORE: MURRAY, J., SULLIVAN, J., and COLINS, J.*
MEMORANDUM BY SULLIVAN, J.: FILED: June 3, 2022
Terry Lynn Bowser (“Bowser”) appeals from the order dismissing his
petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).1
We affirm.
The PCRA court set forth the following factual and procedural history:
[In] June [] 2016, [Bowser] was arrested for sexually
assaulting two minors under the age of 13. Bowser was
subsequently charged with over 40 counts of sex[-]related
offenses . . ..
While [Bowser’s] case was pending, phone conversations
from the Mercer County Jail, specifically those regarding
[Bowser’s] possession of several firearms, were recorded. The
Commonwealth . . . amend[ed] the Information to add [firearms]
charges [to] allow [Bowser] to enter a guilty plea to four counts
of Person Not to Possess, Use, Manufacture, Control, Sell or
Transfer Firearms under 18 Pa.C.S.A. § 6105(a)(1). [The parties
____________________________________________
* Retired Senior Judge assigned to the Superior Court.
1 See 42 Pa.C.S.A. §§ 9541-9546.
J-A06016-22
agreed that] [u]pon [Bowser’s] no contest plea, all sex[-]offense
charges would be dismissed . . ..
****
[In] March [] 2017, [Bowser] entered a no contest plea for
the gun offenses.
[In] May [] 2017, [the trial court] sentenced [Bowser] to 17
to 40 years of incarceration according to the plea agreement . . ..
After sentencing . . . [Bowser] filed a pro se motion requesting his
no contest plea be withdrawn despite having private counsel of
record. Because [Bowser] raised issues regarding ineffective
assistance of counsel, [the] [c]ourt appointed . . . standby counsel
for the hearing on [the] motion. [At the hearing, trial and standby
counsel appeared with Bowser. Bowser consulted with both trial
and standby counsel, declined the court’s offer to continue the
case, opted to remain with trial counsel, and said that he would
“stand by [his] motion.”] After the hearing . . . [the] [c]ourt
denied [Bowser’s] Motion to Withdraw No Contest Plea. [One of
Bowser’s two trial attorneys] was permitted to withdraw as
counsel the same day after a hearing on her motion to withdraw.
On June 6, 2017, [Bowser] filed a pro se notice of appeal.
Thereafter . . . [Bowser’s second trial attorney] was permitted to
withdraw [and the trial court appointed appellate counsel] . . ..
[In] August [] 2018, the Pennsylvania Superior Court
affirmed [the] judgment of sentence. [In] August [] 2019,
[Bowser] privately retained [counsel] and . . . filed a [timely]
Petition for Relief Under the Post [] Conviction Relief Act . . .. On
April 8, 2021, [the PCRA] [c]ourt[, following an evidentiary
hearing,] dismissed [Bowser’s PCRA] petition.
-2-
J-A06016-22
PCRA Court Opinion, 7/22/21, at 1-3 (unnecessary capitalization omitted,
italics added). Bowser timely appealed,2 and both he and the PCRA court
complied with Pa.R.A.P. 1925.
Bowser raises the following issue for our review: “Did the PCRA court
err by concluding that trial counsel rendered effective assistance and did not
abandon Mr. Bowser in the post-sentence stage?” Bowser’s Brief at 10.
Before reviewing the merits of Bowser’s issue, we must first determine
whether he has preserved this issue for our review. Issues not raised in the
lower court are waived and cannot be raised for the first time on appeal. See
Pa.R.A.P. 302(a); see also Commonwealth v. Reid, 99 A.3d 470, 494 (Pa.
2014) (holding that a claim not raised in a PCRA petition cannot be raised for
the first time on appeal, but is instead waived). Moreover, “where an issue is
raised in a post-conviction petition, but is not pursued at a hearing, it is
deemed to be waived unless the failure to pursue the issue was not knowing
and understanding.” Commonwealth v. Shaffer, 569 A.2d 360, 363 (Pa.
Super. 1990); see also Commonwealth v. Frank, 640 A.2d 904, 907 (Pa.
Super. 1994) (finding waiver on appeal of a PCRA issue not advanced in the
PCRA court).
____________________________________________
2 The PCRA court denied relief on April 8, 2021. Bowser had thirty days to
appeal from this order. The deadline to appeal was May 8, 2021, which fell
on a Saturday. Bowser thus had until May 10, 2021 to timely appeal. He filed
his notice of appeal on May 10, 2021. See Pa.R.A.P. 903(a), cmt.
-3-
J-A06016-22
The PCRA court concluded that Bowser has waived his issue alleging trial
counsel’s abandonment at the post-sentence motion stage because he did not
raise it in his PCRA petition or pursue it at his PCRA evidentiary hearing. See
PCRA Court Opinion, 7/22/21, at 6-7. The PCRA court noted that, in his
petition, and at that hearing, Bowser’s only claims concerning his post-
sentence motion were that appellate counsel ineffectively pursued it. Id.
at 6-7. The PCRA court therefore found Bowser’s claim of trial counsel’s
ineffectiveness waived.
After careful review, we discern no error with the PCRA court’s finding
that Bowser has waived this issue. On appeal, Bowser argues that trial
counsel were ineffective for abandoning him and failing to file a “valid post-
sentence motion[],” and for declining to call witnesses or make argument at
the hearing on the post-sentence motion. Bowser’s Brief at 12. However,
neither in his PCRA petition, nor at the PCRA evidentiary hearing, did Bowser
advance the claim that trial counsel abandoned him at the post-sentence
motion stage. See N.T., 9/8/20, at 89-90.3 Bowser thus failed to preserve
____________________________________________
3 The only claim concerning trial counsel that Bowser included in his petition,
and advanced at the hearing, was his allegation that both trial and appellate
counsel were ineffective for failing to “challenge[] the length of [] Bowser’s
sentence.” See PCRA Petition, 8/9/19, at ¶¶ 16.1.3 – 16.1.4 and N.T.,
9/8/20, at 89-90. The other two claims in his petition that he advanced at
the hearing, were limited to appellate counsel’s stewardship of the hearing
on his post-sentence motion. See PCRA Petition, 8/9/19, at ¶¶ 17.1.5 –
17.1.6, 18.5 and N.T., 9/8/20, at 89-90. Accord Argument in Support of
Petition for Post-Conviction Relief, 10/26/20, at 1 (unnumbered) (confirming
(Footnote Continued Next Page)
-4-
J-A06016-22
this challenge to trial counsel’s effectiveness regarding his post-sentence
motion. He has accordingly waived this issue for our review.4
Order affirmed.
____________________________________________
which claims Bowser was advancing at the evidentiary hearing). Bowser’s
claim was that he, through his fiancée, had retained appellate counsel around
the time of his post-sentence motion, and that the appellate attorney
improperly advised him about how to proceed with the motion and failed to
appear for the hearing. See, e.g., N.T., 9/8/20, at 12-13, 77-80, 88-90.
4 To the extent that, in his post-hearing brief, Bowser alleged the
ineffectiveness of all prior counsel regarding his post-sentence motion, see
Argument, 10/26/20, at 1 (unnumbered), that assertion is insufficient to
preserve his claim for our review. See Commonwealth v. Baumhammers,
92 A.3d 708, 730 (Pa. 2014) (providing that a PCRA petitioner may not amend
a pending petition to include a new claim via a supplemental pleading; per
Pa.R.Crim.P. 905, amendment is permitted only by direction or leave of the
PCRA Court; and any claims not raised in an amended petition are waived).
We moreover note that Bowser’s claim that trial counsel abandoned him, even
if preserved, merits no relief. Bowser had representation at the hearing on
his post-sentence motion in the form of both trial counsel and standby
counsel. He declined the court’s offer to continue the hearing; he stated
multiple times that he stood by his motion; he opted to remain with trial
counsel; and standby counsel discussed with Bowser the need to preserve
issues in his motion if he wanted appellate review of them, and trial counsel
concurred. See N.T., 6/2/17, at 3-6. Accord Trial Court Opinion, 7/22/21,
at 7 n.2 (PCRA court concluding this claim, if preserved, is meritless because
trial and standby counsel appeared at the hearing on the post-sentence
motion and participated). Under these circumstances, Bowser’s claim of
abandonment is unavailing.
-5-
J-A06016-22
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/3/2022
-6-