Com. v. Bowman, D.

J-S39021-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD WAYNE BOWMAN :
:
Appellant : No. 578 MDA 2022
Appeal from the PCRA Order Entered March 22, 2022
In the Court of Common Pleas of Clinton County Criminal Division at
No(s): CP-18-CR-0000090-2018
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DONALD WAYNE BOWMAN :
:
Appellant : No. 579 MDA 2022
Appeal from the PCRA Order Entered March 22, 2022
In the Court of Common Pleas of Clinton County Criminal Division at
No(s): CP-18-CR-0000400-2018
BEFORE: PANELLA, P.J., BENDER, P.J.E., and NICHOLS, J.
MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 09, 2023
Appellant, Donald Wayne Bowman, appeals from the post-conviction
court’s March 22, 2022 orders denying his timely-filed petition under the Post
Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541-9546. On appeal, Appellant
primarily raises claims challenging the effective assistance of his trial counsel.
After careful review, we affirm.
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On direct appeal, this Court summarized the facts of Appellant’s case as
follows:
On December 23, 2016, the victims, Brenda Younkin (“Younkin”)
and Megan Byrnes (“Byrnes”),1 were traveling southbound on
Coudersport Pike, in Lock Haven, Pennsylvania, when Appellant,
who was traveling northbound on the same road, veered into their
lane and crashed head on into their vehicle. Upon arrival to the
scene of the accident, Corporal Jeffrey Hildebrand observed that
Appellant exhibited signs of intoxication. Both Younkin and Byrnes
suffered serious injuries as a result of the accident.
1 Byrnes’s minor son was also in the vehicle.
Commonwealth v. Bowman, No. 352 MDA 2020, unpublished
memorandum at *1-2 (Pa. Super. filed Jan. 7, 2021).
Appellant was arrested and charged with various offenses in two
separate cases that were consolidated before trial. On October 3, 2019, he
proceeded to a jury trial, at the close of which he was convicted of two counts
of aggravated assault by vehicle while driving under the influence (DUI), 75
Pa.C.S. § 3735.1(a), aggravated assault by vehicle, 75 Pa.C.S. § 3732.1, DUI-
general impairment, 75 Pa.C.S. § 3802, careless driving, 75 Pa.C.S. §
3714(a), and reckless driving, 75 Pa.C.S. § 3736. He was sentenced on
December 6, 2019, to an aggregate term of 54 to 136 months’ incarceration.
He filed a timely notice of appeal, and this Court affirmed his judgment of
sentence on January 7, 2021. See id. Appellant did not file a petition for
allowance of appeal to our Supreme Court.
On August 13, 2021, Appellant filed a timely, counseled PCRA petition.
The court thereafter conducted an evidentiary hearing and, on March 22,
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2022, it issued an order denying Appellant’s petition. He filed a timely notice
of appeal at each of his two, separate docket numbers, and this Court
thereafter consolidated his appeals sua sponte.
Herein, Appellant states five issues for our review:
I. Whether the PCRA court committed reversible error by denying
[Appellant’s] PCRA claim that trial counsel was ineffective for
stipulating to the [blood alcohol content (BAC)] results, where
such stipulation admitted a central element of the DUI charges
and therefore failed to require the Commonwealth to prove an
important element of its case, which had a spillover effect on the
other charges?
II. Whether the PCRA court committed reversible error by denying
[Appellant’s] PCRA claim that trial counsel was ineffective for
stipulating to the BAC evidence when he apparently
misunderstood its import on the introduction of the
Commonwealth’s expert witness testimony from its forensic
toxicologist?
III. Whether the PCRA court committed reversible error by
denying [Appellant’s] PCRA claim that trial counsel was ineffective
for failing to file a motion to recuse the Clinton County District
Attorney’s office and/or failing to request that the trial court
conduct an inquiry into an actual or potential conflict with the
district attorney’s office when his prior attorney in the case
withdrew to join the same district attorney’s office prosecuting
him?
IV. Whether the PCRA court committed reversible error by denying
[Appellant’s] PCRA claim that trial counsel was ineffective for
providing deficient advice regarding accepting an advantageous
plea agreement?
V. Whether the PCRA court committed reversible error by denying
[Appellant’s] PCRA claim that his due process rights to a fair trial
were violated when the court failed to dismiss the jury panel after
prejudicial unsworn statements by a potential juror irretrievably
tainted the impartiality of the jury?
Appellant’s Brief at 4-5 (unnecessary capitalization omitted).
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Before delving into Appellant’s issues, we note that “[t]his Court’s
standard of review from the grant or denial of post-conviction relief is limited
to examining whether the lower court’s determination is supported by the
evidence of record and whether it is free of legal error.” Commonwealth v.
Morales, 701 A.2d 516, 520 (Pa. 1997) (citing Commonwealth v.
Travaglia, 661 A.2d 352, 356 n.4 (Pa. 1995)). Where, as here, a petitioner
claims that he received ineffective assistance of counsel, our Supreme Court
has stated that:
[A] PCRA petitioner will be granted relief only when he proves, by
a preponderance of the evidence, that his conviction or sentence
resulted from the “[i]neffective assistance of counsel which, in the
circumstances of the particular case, so undermined the truth-
determining process that no reliable adjudication of guilt or
innocence could have taken place.” Generally, counsel’s
performance is presumed to be constitutionally adequate, and
counsel will only be deemed ineffective upon a sufficient showing
by the petitioner. To obtain relief, a petitioner must demonstrate
that counsel’s performance was deficient and that the deficiency
prejudiced the petitioner. A petitioner establishes prejudice when
he demonstrates “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding
would have been different.” … [A] properly pled claim of
ineffectiveness posits that: (1) the underlying legal issue has
arguable merit; (2) counsel’s actions lacked an objective
reasonable basis; and (3) actual prejudice befell the petitioner
from counsel’s act or omission.
Commonwealth v. Johnson, 966 A.2d 523, 532-33 (Pa. 2009) (citations
omitted).
Appellant first contends that his trial counsel, Patrick Johnson, Esq.,
acted ineffectively by stipulating that Appellant had a BAC that was .15%,
which was almost twice the legal limit. Appellant maintains that counsel’s
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stipulating to his BAC level essentially conceded Appellant’s guilt to the DUI-
general impairment charge he faced, and it also admitted an essential element
of the charge of aggravated assault while DUI.
At the PCRA hearing, Attorney Johnson testified that his strategy in
stipulating to Appellant’s BAC was two-fold. See N.T. PCRA Hearing, 12/2/21,
at 22. First, he “didn’t want to call the jury’s attention to it” by having the
jury hear hours of evidence regarding Appellant’s high level of intoxication.
Id. Instead, counsel wanted the jury to “pay attention to … the circumstances
of the accident” rather than “fixating” on Appellant’s high BAC and the victims’
injuries. Id. Second, Attorney Johnson testified that he believed that, in
exchange for the BAC stipulation, the Commonwealth would not call several
expert witnesses to the stand, including the phlebotomist, a chain of custody
expert, and the toxicologist. Id. at 23. However, despite the stipulation, the
Commonwealth still called the toxicologist to the stand in order to present his
expert opinion that a person with a .15% BAC would be unable to safely
operate a motor vehicle. See N.T. Trial, 10/3/19, at 131.
On appeal, Appellant claims that Attorney Johnson’s “gloss over
approach” to his BAC was “plainly deficient,” as it “was simply impossible” to
“avoid[] the elephant in the room” of Appellant’s intoxication. Appellant’s Brief
at 20. He further contends that counsel’s strategy of stipulating to the BAC
was unreasonable, where the toxicologist still testified.
We disagree. Attorney Johnson reasonably sought to minimize the
discussion of Appellant’s high level of intoxication by stipulating to his BAC
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rather than exposing the jury to multiple witnesses and lengthy testimony on
that issue. While the Commonwealth still called its toxicology expert to opine
on Appellant’s ability to safely operate a vehicle with a BAC of .15%, the
Commonwealth did not call the phlebotomist or chain of custody clerk, thereby
limiting the amount of testimony concerning Appellant’s BAC. Accordingly, we
conclude that counsel expressed a reasonable basis for deciding to stipulate
to Appellant’s BAC.
We also note that Appellant offers no discussion of how he was
prejudiced by Attorney Johnson’s stipulation. Presumably, even had counsel
not stipulated to Appellant’s BAC, the Commonwealth would have been able
to prove his BAC through the testimony of the toxicologist and/or other
witnesses. Moreover, as this Court observed on direct appeal, the
Commonwealth presented an “overwhelming body of proof” of Appellant’s
guilt at trial. Bowman, 352 MDA 2020, unpublished memorandum at *12.
In regard to Appellant’s level of intoxication, we noted that:
[An eyewitness to the accident, Sharon] Cryder[,] testified that
she detected alcohol emanating from Appellant and that he
appeared intoxicated. N.T. Trial at 36. Corporal Hildebrand
testified that Appellant “smelled very, very strongly of alcoholic
beverages,” that Appellant’s speech was slurred, Appellant’s eyes
were “red, glassy and bloodshot,” and that Appellant “was
staggering and swaying” and “unsure of his footing.” Id. at 49-
50. Corporal Hildebrand also testified that, in his opinion,
Appellant was “impaired” and “incapable of safe driving on the
night of the accident.” Id. at 54-55.
Id. at *12 n.11. Given this evidence of Appellant’s intoxication, and the
likelihood that the Commonwealth could have presented other proof to
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establish Appellant’s exact BAC, we conclude that Attorney Johnson’s
stipulating to Appellant’s BAC was not prejudicial. Thus, Appellant’s first
ineffectiveness claim is meritless.
Next, Appellant contends that Attorney Johnson was ineffective for not
objecting to the testimony of the Commonwealth’s toxicologist on the basis
that it violated Appellant’s agreement to stipulate to his BAC. Just before the
toxicologist testified, the following sidebar discussion occurred:
[Attorney Johnson]: My understanding of the stipulation was that
we were going to stipulate to the [BAC] and that was going to the
be the extent of the toxicology. We stipulate to that, they don’t
call the toxicology expert, they don’t call the phlebotomist. Now
they’re calling the toxicologist. I’m just pointing out that was not
my understanding of the stipulation.
THE COURT: [Commonwealth,] where are you headed with this
witness?
[The Commonwealth]: Just … that he would testify [that] at that
rate[,] somebody would be impaired.
THE COURT: Okay.
[Attorney Johnson]: I thought that’s what we were getting away
from when we stipulated to the BAC.
THE COURT: Well the – I can’t speak to your subjective
understanding, but the stipulation was to the BAC.
[Attorney Johnson]: Okay.
N.T. Trial at 126.
Appellant now claims that Attorney Johnson should have formally
objected to the testimony of the toxicologist. Appellant stresses that, at the
PCRA hearing, counsel conceded that “had he known [the toxicologist’s]
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testimony was coming in[,] he would likely not have stipulated to the BAC.”
Appellant’s Brief at 24 (citing N.T. PCRA Hearing at 26).
Initially, in the portion of Attorney Johnson’s testimony cited by
Appellant, the following exchange occurred:
Q[:] And if you had known that [the toxicologist’s] testimony was
coming in, would you have still stipulated to the BAC?
[Attorney Johnson:] That’s a good question. … [F]rom the
beginning, I had wanted to avoid the topic of the DUI as much as
I could, so I guess I can’t answer that question. I can tell you
that my understanding that he would not was certainly a strong
reason why I did that.
N.T. PCRA Hearing at 26 (emphasis added). Contrary to Appellant’s
characterization on appeal, counsel did not say that he would “likely not” have
stipulated to the BAC had he known the toxicologist would testify anyway.
Appellant’s Brief at 24. Instead, Attorney Johnson testified that he could not
answer that question.
Moreover, Appellant once again offers no discussion of how he was
prejudiced by counsel’s failure to formally object to the toxicologist’s
testimony. Even without the toxicologist’s opinion that a BAC level of .15%
would render a person incapable of safely operating a motor vehicle, the
Commonwealth had other evidence demonstrating that Appellant was
intoxicated. Namely, Sharon Cryder and Corporal Hildebrand testified that
Appellant was visibly intoxicated, was slurring his speech, had glassy and
bloodshot eyes, and was staggering and swaying. Corporal Hildebrand
testified that Appellant was impaired to the point of being incapable of safely
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driving. Thus, Appellant has not proven that he was prejudiced by the
admission of the toxicologist’s cumulative testimony. Additionally, for the
reasons stated supra, Appellant has not established that the outcome of the
proceeding would have been different had Attorney Johnson not stipulated to
his BAC. Thus, his second ineffectiveness claim warrants no relief.
Next, Appellant argues that Attorney Johnson was ineffective for failing
to file a motion to recuse the Clinton County District Attorney’s Office
(hereinafter “DA’s Office”), and/or failing to request that the trial court
conduct an inquiry into whether there was an actual or potential conflict with
that office’s prosecuting Appellant. The basis for Appellant’s allegation of a
conflict is the fact that his initial trial counsel in this case, Thom Rosamilia,
Esq., sought to withdraw after he had represented Appellant during “critical
stages of the prosecution[,] … including multiple preliminary hearings, the
filing of multiple pre-trial motions, and pre-trial hearings.” Appellant’s Brief
at 28. Attorney Rosamilia then “assumed a position as a part-time district
attorney” with the DA’s office and Attorney Johnson was appointed to
represent Appellant. Id. at 9.
Appellant contends that Attorney Johnson acted ineffectively by not
filing a motion to recuse the DA’s Office from prosecuting him where there
was clearly an appearance of a conflict based on Attorney Rosamilia’s
employment with that office after representing Appellant. Id. at 27-28.
Alternatively, Appellant claims that Attorney Johnson should have at least
requested that the court inquire into whether a conflict existed under these
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circumstances. Id. at 28. Appellant concedes that “[t]he testimony presented
at the PCRA hearing established … that there were no discussions amongst
[Attorney] Rosamilia and the [DA’s] Office about [Appellant’s] case.” Id. at
30. He complains, however, that he only learned this “after the fact” and, “at
the time it mattered most to [Attorney Johnson] and [Appellant], the
appearance of a conflict existed and something more was required than simply
ignoring it.” Id.
Appellant’s argument is unconvincing. This Court has explained:
Where an actual conflict of interest exists, the defendant is
entitled to have the conflict removed without any further showing
of prejudice. On the other hand, a mere allegation or appearance
of impropriety is insufficient to establish an actual conflict of
interest.
The mere fact that an attorney or employee of the [Public
Defender’s (PD)] Office has moved to the DA’s Office does not
necessarily compel disqualification of the entire DA’s Office.
Rather, courts will look closely at the specific facts of the case and
any remedial measures to determine whether any actual conflict
of interest exists. Commonwealth v. Faulkner, … 595 A.2d 28,
38 ([Pa.] 1991) (no conflict of interest where DA’s Office hired the
defendant’s private investigator, where the investigator did not
actually speak to anyone in the DA’s Office about the defendant’s
case), cert. denied, 503 U.S. 989… (1992); Commonwealth v.
Harris, … 460 A.2d 747, 749 ([Pa.] 1983) (no conflict of interest
where Chief Public Defender, who did not represent defendant at
trial, became DA at the time that defendant filed post-conviction
relief petition); Commonwealth v. Boring, … 684 A.2d 561,
564-[]65 ([Pa. Super.] 1996) (no conflict of interest where
attorney and investigator for PD’s Office joined the DA’s Office,
because they did not work on defendant's case in either
office)…; see also, Commonwealth v. Ford, 650 A.2d 433, 443
([Pa.] 1994) (no conflict of interest where defendant’s trial judge
became DA of the county while defendant’s case was pending,
because DA “disqualified and screened herself from any
participation” in the case after becoming DA), cert. denied, 514
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U.S. 1114 … (1995). Our Supreme Court has recognized the
“enormous burden upon the already strained resources of the
District Attorney’s staff” that would result if the Court allowed
disqualification based on a “mere assertion of impropriety.”
Harris, 460 A.2d at 750.
Commonwealth v. Sims, 799 A.2d 853, 856–57 (Pa. Super. 2002) (some
internal citations omitted).
Here, there is no support in the record for Appellant’s allegation that the
entire DA’s Office had a conflict of interest that warranted its removal from his
prosecution. At the PCRA hearing, Attorney Rosamilia testified that when he
started working for the DA’s Office, he was told he would “have nothing to do
with [Appellant’s] cases.” N.T. PCRA Hearing at 73. He stated that he never
had any “substantive discussions” about Appellant’s cases with anyone in the
DA’s Office, and he did not handle any aspect of the cases. Id. While counsel
admitted there was not a “written policy … in terms of … a firewall” between
himself and Appellant’s prosecution, nothing in the record suggests that
Attorney Rosamilia was in any way involved in the handling of Appellant’s
cases. Id.Attorney Rosamilia’s testimony makes this case distinguishable from a
decision on which Appellant relies, Commonwealth v. Ford, 122 A.3d 414(Pa. Super. 2015). There, this Court remanded for a hearing to determine if
the trial court should have ordered the recusal of the entire Clinton County
DA’s Office based on Ford’s former counsel’s employment with that office. Id.
at 418. In reaching this decision, we stressed that the “[t]he record [did] not
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indicate whether [Ford’s former counsel] disclosed confidential information to
other members of the Clinton County District Attorney’s Office.” Id.Here, in contrast, Attorney Rosamilia testified that he had no discussions
about Appellant’s cases with anyone in the DA’s Office. Thus, the evidence
demonstrates there was no actual conflict, and Appellant was not prejudiced
by Attorney Johnson’s failure to pursue the DA Office’s recusal from his
prosecution.
In Appellant’s fourth issue, he argues that Attorney Johnson was
ineffective for “providing deficient advice regarding [Appellant’s] accepting an
advantageous plea agreement….” Appellant’s Brief at 33 (emphasis omitted).
Appellant explains that, prior to trial, the Commonwealth offered him a
sentence of 9 to 23 months’ incarceration if he pled guilty to the aggravated
assault by vehicle charges, with the remaining charges being dismissed. See
N.T. PCRA Hearing at 11. Appellant acknowledges that Attorney Johnson
“advised [Appellant] that he should take the offer….” Id. at 35. He complains,
however, that counsel ineffectively told him that he “had a shot” of winning if
he went to trial, despite counsel’s knowledge that “[t]here was a mountain of
threatening evidence against” Appellant. Id. Appellant also insists that
counsel “did not review the full scope of his sentencing exposure” or the “full
ramifications if [Appellant] lost at trial….” Id. at 36. Based on Attorney
Johnson’s “unreasonably positive prognosis about [Appellant’s] chances of
winning at trial[,]” and his failure to fully advise Appellant of the consequences
if he proceeded to trial and lost, Appellant rejected the favorable plea deal.
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Appellant now maintains that counsel’s advice surrounding the plea was
ineffective.
Preliminarily, we have observed that,
a post-conviction petitioner seeking relief on the basis that
ineffective assistance of counsel caused him or her to reject a
guilty plea must demonstrate the following circumstance:
[B]ut for the ineffective advice of counsel there is a
reasonable probability that the plea offer would have been
presented to the court (i.e., that the defendant would have
accepted the plea and the prosecution would not have
withdrawn it in light of intervening circumstances), that the
court would have accepted its terms, and that the conviction
or sentence, or both, under the offer’s terms would have
been less severe than under the judgment and sentence
that in fact were imposed.
Commonwealth v. Steckley, 128 A.3d 826, 832 (Pa. Super. 2015) (citation
omitted).
Instantly, Appellant asserts that, but for Attorney Johnson’s telling him
he had a chance to win at trial and failing to fully advise him of the
consequences of proceeding to trial, he would have accepted the plea offered
by the Commonwealth. The record does not support Appellant’s claim.
Attorney Johnson testified at the PCRA hearing that he conveyed the
Commonwealth’s plea offer to Appellant “[m]any times” throughout his
representation of Appellant, and again on “[t]he morning of trial.” N.T. PCRA
Hearing at 11, 12. Counsel believed the plea offer was favorable, and
conveyed that fact to Appellant “[m]any times.” Id. at 12. Attorney Johnson
testified that on the night before trial, he met with Appellant and “again
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reinforced [his] opinion that … [Appellant] should take the plea deal….” Id.
at 15.
Attorney Johnson testified that while he could not specifically recall the
exact conversations he had with Appellant, it is his standard practice to discuss
the sentencing guideline ranges, and the prospect of consecutive and
concurrent terms. Id. at 16. Thus, he was “sure he went over the standard
… ranges” of Appellant’s potential sentences and “what would happen if he
lost” at trial. Id. at 15-16. Attorney Johnson testified that he repeatedly told
Appellant that there would be “a significant penalty if he were to lose at trial.”
Id. at 16-17. Attorney Johnson also believed that he had advised Appellant
that if he lost at trial, he “would be looking at a state sentence[.]” Id. at 19.
Attorney Johnson further testified that he and Appellant had “talked [at]
length” about the likelihood of Appellant’s winning if he went to trial. Id. at
17. Counsel stated that he told Appellant that “he had a shot” based on the
possible defense “that the other vehicle came into his lane and that he
essentially had gone … to the left of that vehicle in an effort to miss them.”
Id. at 17, 20. However, Attorney Johnson stressed that he advised Appellant
“numerous times in the month leading up to the trial that [he] thought
[Appellant] should take the plea[,]” and that even on the morning of trial, he
“went back to [Appellant] again and reinforced [his] opinion that the plea was
the best route.” Id. at 18, 19.
Based on this testimony, the PCRA court disagreed with Appellant’s
claim that Attorney Johnson “gave him an unreasonably positive prognosis as
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to his chances at trial.” PCRA Court Finding of Fact, Discussion, and Order on
Defendant’s PCRA Petition, 3/22/22, at 4 (unnumbered). The court found that
Appellant had been advised about the favorable plea agreement multiple
times, and he had also been notified of the sentencing guidelines. Id. The
PCRA court concluded that Appellant “was not interested in any plea that
involved a jail sentence[,]” as Appellant had testified that he would lose his
job if he went to jail. Id. at 5 (unnumbered); see also N.T. Trial at 54-55.
The record supports the court’s factual findings and credibility determinations.
Based thereon, we discern no error in its conclusion that Attorney Johnson did
not act ineffectively in advising Appellant regarding whether to plead guilty,
and the ramifications of deciding to proceed to trial.
Finally, Appellant argues that his due process rights to a fair trial under
the Pennsylvania and United States Constitutions were violated when the trial
court failed to dismiss the entire jury panel after one potential juror, during
jury selection, twice stated that she could not be fair and impartial because
her husband had been killed by an impaired driver. This issue was previously
litigated and rejected on direct appeal. See Bowman, 352 MDA 2020,
unpublished memorandum at *14-18. Consequently, Appellant is ineligible
for post-conviction relief on this claim. See 42 Pa.C.S. § 9543(a)(3) (stating
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that, to be eligible for PCRA relief, the petitioner must prove the claim was not
previously litigated or waived).1
Orders affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 03/09/2023
____________________________________________
1 Appellant argues that our decision on direct appeal was erroneous. See
Appellant’s Brief at 44 n.8. However, “[i]t is beyond the power of a Superior
Court panel to overrule a prior decision of the Superior Court, except in
circumstances where intervening authority by our Supreme Court calls into
question a previous decision of this Court.” Commonwealth v. Pepe, 897
A.2d 463, 465 (Pa. Super. 2006) (citations omitted). Appellant does not
identify any intervening caselaw by our Supreme Court that would impact the
validity of our prior decision in this case. As such, we are bound to uphold it.
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