# Com. v. Bowen, H. > Superior Court of Pennsylvania · June 30, 2020 URL: https://www.frixlaw.com/law-library/cases/4545307 ## Case - **Court:** Superior Court of Pennsylvania - **Decided:** June 30, 2020 - **Precedential status:** Unpublished - **Opinion:** Opinion - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4545307 ## How later opinions describe it (automated extraction) - noting that we may affirm the PCRA court on any grounds supported by the record ## Opinion text J-S25018-20 NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37 COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : HALIM RAYSHAWN BOWEN : : Appellant : No. 1604 MDA 2019 Appeal from the PCRA Order Entered September 24, 2019 In the Court of Common Pleas of York County Criminal Division at No(s): CP-67-CR-0000098-2014 BEFORE: LAZARUS, J., DUBOW, J., and KING, J. MEMORANDUM BY DUBOW, J.: FILED JUNE 30, 2020 Appellant, Halim Rayshawn Bowen, appeals from the Order entered September 24, 2019, which denied and dismissed his Petition for collateral relief filed under the Post Conviction Relief Act (PCRA), 42 Pa.C.S. §§ 9541- 46. In addition, Appellant’s appointed counsel, Aaron N. Holt, Esq., has filed an Application to Withdraw as Counsel and an accompanying Turner/Finley “no merit” Brief.1 We grant counsel’s Application. Further, after careful review, we adopt in part the PCRA court’s September 24, 2019 Opinion as our own and in all respects affirm the denial of relief. In December 2014, a jury convicted Appellant of First-Degree Murder,2 based on evidence that he intentionally killed the victim by gunshot to the ____________________________________________ 1 See Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc). 2 18 Pa.C.S. § 2502(a). J-S25018-20 back during an altercation at a bar. The trial court sentenced Appellant to life imprisonment without the possibility of parole. Appellant timely appealed, and this Court affirmed the Judgment of Sentence. Commonwealth v. Bowen, 678 MDA 2015 at *1 (Pa. Super. filed March 29, 2016). The Pennsylvania Supreme Court denied Appellant’s Petition for further review. Commonwealth v. Bowen, 158 A.3d 81 (Pa. 2016). In October 2017, Appellant timely and pro se filed a Petition for collateral relief, in relevant part challenging the constitutionality of his Murder charge, the legality of his sentence, and asserting ineffective assistance of trial counsel. Pro Se Petition, 10/3/17. The PCRA court appointed counsel, who filed an amended Petition asserting two additional claims of ineffective assistance of trial counsel. Amended PCRA Petition, 1/24/18. In July 2018, the PCRA court held an evidentiary hearing but deferred a final decision on the merits. See PCRA Ct. Order, 7/23/18.3 In April 2019, approximately nine months after his evidentiary hearing but prior to any decision by the PCRA court, Appellant sought to amend his claims, further asserting that the Commonwealth had presented perjured testimony at his trial. Motion to Open Record and Amend PCRA Petition, 4/16/19 (“Motion to Amend”). The PCRA court determined that Appellant sought to present a novel claim, rather than one supplementary to those ____________________________________________ 3 At the evidentiary hearing, the PCRA court granted leave for Appellant to proceed on five claims: one challenging the constitutionality of his Murder charge, one challenging the legality of his sentence, and three asserting ineffective assistance of counsel. N.T. PCRA, 7/23/18, at 4. -2- J-S25018-20 claims raised in his pro se or amended Petitions, and therefore denied Appellant’s Motion to Amend as untimely filed. PCRA Ct. Op. and Order, 7/19/19. In September 2019, the PCRA court denied Appellant relief. PCRA Ct. Op. and Order, 9/24/19. Appellant timely appealed and filed a court-ordered Pa.R.A.P. 1925(b) Statement. The PCRA court issued a responsive Pa.R.A.P. 1925(a) Statement, incorporating its prior analysis. In this Court, Attorney Holt filed a Turner/Finley Brief, raising the following issues: 1. [Whether] the [PCRA] [c]ourt err[ed] when it held that [Appellant] was not entitled to relief on his claim that the laws that he was sentenced under were not properly enacted[;] 2. [Whether] the [PCRA] [c]ourt err[ed] when it held that [Appellant] was not entitled to relief on his claim that the Constitution was violated when he was sentenced under the wrong section of the Criminal Code[;] 3. [Whether] the [PCRA] [c]ourt err[ed] when it held that [Appellant] was not entitled to relief on his claim that [t]rial [c]ounsel was ineffective for failing to object to the Commonwealth’s closing argument[;] 4. [Whether] the [PCRA] [c]ourt err[ed] when it held that [Appellant] was not entitled to relief on his claim that [t]rial [c]ounsel was ineffective for failing to request a jury instruction regarding [Appellant’s] alleged gang membership[;] 5. [Whether] the [PCRA] [c]ourt err[ed] when it held that [Appellant] was not entitled to relief on his claim that [t]rial [c]ounsel was ineffective for failing to present video evidence of an alternate angle of the shooting[; and] 6. [Whether] the [PCRA] [c]ourt err[ed] when it held that [Appellant] could not amend his PCRA Petition to include a new issue not raised in his [prior filings.] -3- J-S25018-20 Turner/Finley Br. at 11-13 (internal footnote and suggested answers omitted). In addition, counsel has filed an Application to Withdraw as Counsel. Counsel’s Application to Withdraw Before we consider Appellant’s issues, we must review counsel’s request to withdraw. Pursuant to Turner/Finley, independent review of the record by competent counsel is necessary before the Court shall permit withdrawal on collateral appeal. Commonwealth v. Pitts, 981 A.2d 875, 876 n.1 (Pa. 2009). Counsel is then required to submit a “no merit” letter (1) detailing the nature and extent of his or her review; (2) listing each issue the petitioner wishes to have raised on review; and (3) explaining why the petitioner’s issues are meritless. Id. The Court then conducts its own independent review of the record to determine if the petition is meritless. Id. Counsel must also send to the petitioner: “(1) a copy of the ‘no merit’ letter/brief; (2) a copy of counsel’s petition to withdraw; and (3) a statement advising petitioner of the right to proceed pro se or by new counsel.” Commonwealth v. Wrecks, 931 A.2d 717, 721 (Pa. Super. 2007) (citation omitted). Our review of the record discloses that Attorney Holt has complied with each of the above requirements. Counsel has presented a comprehensive review of the issues Appellant seeks to raise on appeal, the appropriate standard of review on appeal, and addressed the PCRA court’s analysis where appropriate. Turner/Finley Br. at 10-11, 16-41. Based on this analysis, counsel concludes that Appellant’s claims are without merit. Id. at 43-44. In addition, Attorney Holt sent Appellant copies of the Turner/Finley Brief and -4- J-S25018-20 his Application to Withdraw, and he advised Appellant of his rights in lieu of representation. See Application to Withdraw as Counsel, 4/5/20, Exh. B (Letter, dated 4/3/20). Because Attorney Holt has complied with the Turner/Finley requirements, we will proceed with our independent review of the record and merit of Appellant’s claims.4 Standard / Scope of Review We review an order denying a petition for collateral relief to determine whether the PCRA court’s decision is supported by the evidence of record and free of legal error. Commonwealth v. Jarosz, 152 A.3d 344, 350 (Pa. Super. 2016) (citing Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014)). “This Court grants great deference to the findings of the PCRA court if the record contains any support for those findings.” Commonwealth v. Anderson, 995 A.2d 1184, 1189 (Pa. Super. 2010) (citation omitted). “Further, the PCRA court’s credibility determinations are binding on this Court, where there is record support for those determinations.” Id. To be eligible for relief under the PCRA, a petitioner must establish that his conviction or sentence resulted from one or more of the enumerated errors or defects found in 42 Pa.C.S. § 9543(a)(2): a constitutional violation; ineffective assistance of counsel; an unlawfully induced plea; improper ____________________________________________ 4 On June 19, 2020, more than two months after counsel informed Appellant that he would seek leave to withdraw, Appellant pro se filed an Application for Extension of Time to respond to Attorney Holt’s Turner/Finley Brief. Under these circumstances, and in light of our independent review of Appellant’s claims, we deny Appellant’s Application. -5- J-S25018-20 obstruction by governmental officials; a case where exculpatory evidence has been discovered; an illegal sentence has been imposed; or the tribunal conducting the proceeding lacked jurisdiction. See 42 Pa.C.S. § 9543(a)(2)(i)-(viii). In addition, a petitioner must establish that the issues raised in the PCRA petition have not been previously litigated or waived, and that “the failure to litigate the issue prior to or during trial, during unitary review or on direct appeal could not have been the result of any rational, strategic or tactical decision by counsel.” Id. at § 9543(a)(3), (a)(4). Improperly Enacted Law In his first issue, Appellant asserts that 18 Pa.C.S. § 2502 (Murder) was not duly enacted as a penal statute and is, therefore, unconstitutional and illegal. See Pro Se Petition at 5; Turner/Finley Br. at 19-23. Appellant elaborated on this claim at the PCRA hearing, stating, “All laws must possess an enacting clause. That [Murder] statute does not possess an enacting clause; therefore, it is void from the beginning.” N.T. PCRA at 10. The PCRA court determined that this claim lacked merit. See PCRA Ct. Op. and Order, 9/24/19, at 4 (citing Act of December 6, 1972, P.L. 1482 No. 334, § 1). We agree. Pursuant to 1 Pa.C.S. § 1101(a), all statutes are required to begin, “The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows.” The clause must appear “immediately after the preamble or the table of contents of the statute.” 1 Pa.C.S. § 1101(a). Although the enacting clause may not appear in certain electronic publications, the official codification of -6- J-S25018-20 the Crimes Code includes the necessary language. See Commonwealth v. Stultz, 114 A.3d 865, 879 (Pa. Super. 2015) (clarifying that, while the West Publishing Company has omitted the enacting clause from its annotated edition of the Crimes Code, the law was properly enacted). Thus, Appellant’s claim is without merit.5 Illegal Sentence In his second issue, Appellant claims that he is serving an illegal sentence because the court “imposed Judgment pursuant to a Crimes Code that only pertains to a capital case[.]” Pro Se Petition at 5; see Turner/Finley Br. at 23-27. Essentially, according to Appellant, the Commonwealth’s decision to forego a possible death penalty rendered his conviction for First-Degree Murder deficient, because there is no other viable penalty established under the Crimes Code to sentence a defendant convicted of First-Degree Murder. See N.T. PCRA at 7-9. In rejecting this claim, the PCRA court explained the statutory framework that underlies the sentencing process following a conviction for First-Degree Murder. See generally PCRA Ct. Op. and Order, 9/24/19, at 4- 6. As the court noted, Section 1102(a) of the Crimes Code provides that “person who has been convicted of a murder of the first degree . . . shall be sentenced to death or to a term of life imprisonment in accordance with 42 ____________________________________________ 5 We note further that Appellant does not explain why he could not have raised this claim prior to or during trial or on direct appeal. Thus, for this reason also, Appellant has not established that he is eligible for relief on this claim. See 42 Pa.C.S. § 9543(a)(3), (a)(4). -7- J-S25018-20 Pa.C.S. § 9711.” 18 Pa.C.S. § 1102(a). In turn, Section 9711 sets forth the procedure whereby a jury, or under appropriate circumstances the trial judge, shall hear evidence and determine whether a sentence of death is appropriate. 42 Pa.C.S. § 9711. Reviewing this framework, we agree with the PCRA court’s conclusion that the sentencing options outlined in Section 1102(a) are not limited to “capital” offenses, i.e., the sentencing process “does not require the Commonwealth to present both a death sentence and a life imprisonment sentence to a jury.” PCRA Ct. Op. and Order, 9/24/19, at 6. We discern no error in the court’s conclusion. Thus, because the Commonwealth declined to pursue the death penalty, the trial court properly imposed the only other sentencing option available upon Appellant’s conviction for First-Degree Murder, life imprisonment without the possibility of parole. 18 Pa.C.S. § 1102(a). Thus, we conclude that Appellant’s illegal sentence claim is without merit.6 Ineffective Assistance of Trial Counsel ____________________________________________ 6 It is well-settled that the Commonwealth “possesses the initial discretion regarding whether to seek the death penalty in a murder prosecution.” Commonwealth v. Buck, 709 A.2d 892, 896 (Pa. 1998) (citation omitted). The Commonwealth’s discretion in deciding whether to pursue a death sentence is not unfettered. Commonwealth v. Chamberlain, 30 A.3d 381, 424-25 (Pa. 2011) (listing cases recognizing limits placed upon the Commonwealth in accordance with Section 9711 requirements that there is evidence of aggravating circumstances). However, we are aware of no precedent that would permit Appellant to challenge the Commonwealth’s decision not to pursue the death penalty. -8- J-S25018-20 In his third, fourth, and fifth claims, Appellant asserts ineffective assistance of counsel. Pro Se Petition at 6; Amended PCRA Petition at 1-2 (unpaginated); Turner/Finley Br. at 27-40. We presume counsel is effective. Commonwealth v. Cox, 983 A.2d 666, 678 (Pa. 2009). To overcome this presumption, a petitioner must establish that: (1) the underlying claim has arguable merit; (2) counsel lacked a reasonable basis for his act or omission; and (3) petitioner suffered actual prejudice. Commonwealth v. Treiber, 121 A.3d 435, 445 (Pa. 2015). In order to establish prejudice, a petitioner must demonstrate “that there is a reasonable probability that, but for counsel’s error or omission, the result of the proceeding would have been different.” Commonwealth v. Koehler, 36 A.3d 121, 132 (Pa. 2012). A claim will be denied if the petitioner fails to meet any one of these prongs. See Jarosz, 152 A.3d at 350 (citing Commonwealth v. Daniels, 963 A.2d 409, 419 (Pa. 2009)). Adoption of the PCRA Court’s Analysis Appellant asserts that trial counsel was ineffective for: (1) failing to object to certain statements made by the prosecuting attorney during closing argument; (2) failing to request a jury instruction regarding Appellant’s alleged gang membership; and (3) failing to introduce allegedly exculpatory portions of a surveillance video recorded at the bar at the time of the murder. Pro Se Petition at 6; Amended PCRA Petition at 1-2 (unpaginated); PCRA N.T. at 12-15. -9- J-S25018-20 The Honorable Craig T. Trebilcock has authored well-reasoned analysis addressing each of Appellant’s ineffectiveness claims. After a thorough review of the certified record, the briefs of the parties, the applicable law, and the PCRA court’s Opinion, we conclude that there is no merit to these claims. Accordingly, we adopt that Opinion in part as our own and affirm the court’s denial of relief. See PCRA Ct. Op. and Order, 9/24/19, at 7-10 (concluding the trial counsel had a reasonable basis for not objecting to the prosecutor’s remarks, as the prosecutor merely made reasonable inferences based upon the evidence and the remarks fell within the reasonable scope of advocacy), 10-12 (concluding that counsel did not have a reasonable basis to request a limiting instruction because there was no evidence that Appellant was affiliated with a gang); 12-13 (concluding that (a) counsel had a reasonable basis for not proffering additional video evidence because the footage admitted was the least inculpatory evidence available and, noting that Appellant did not present any allegedly exculpatory video evidence at the PCRA hearing; (b) Appellant’s assertions were unsupported and speculative). Motion to Amend In his final issue, Appellant asserts the PCRA court erred in denying his Motion to Amend. Turner/Finley Br. at 40. For the following reasons, we affirm the PCRA court’s decision. A petitioner must request and obtain leave to amend a PCRA petition. Commonwealth v. Baumhammers, 92 A.3d 708, 730 (Pa. 2014). “Amendments are not ‘self-authorizing.’” Id. (citation omitted). - 10 - J-S25018-20 Pennsylvania Rule of Criminal Procedure 905 governs the amendment and withdrawal of petitions for collateral relief. In relevant part, the Rule provides that the PCRA court “may grant leave to amend . . . a petition for post-conviction collateral relief at any time” and that “amendment shall be freely allowed to achieve substantial justice.” Pa.R.Crim.P. 905(A). “Pursuant to this Rule, PCRA courts are invested with discretion to permit the amendment of a pending, timely-filed post-conviction petition, which must be exercised consistently with the command of Rule 905(A) that amendment should be freely allowed to achieve substantial justice.” Commonwealth v. Crispell, 193 A.3d 919, 930 (Pa. 2018) (internal quotation marks and citation omitted). “Adherence to this liberal standard for amendment is essential because criminal defendants may have just one opportunity to pursue collateral relief in state court.” Id.; see also, e.g., Commonwealth v. Flanagan, 854 A.2d 489, 499-500 (Pa. 2004) (approving the PCRA court decision to permit amendment approximately ten years after an initial, timely filing). Nevertheless, in considering the discretion accorded the PCRA court, our Supreme Court has stressed that “a PCRA court may grant leave to amend,” but is not required to do so. Commonwealth v. Williams, 732 A.2d 1167, 1191-92 (Pa. 1999) (emphasis in original) (discerning no abuse of the PCRA court’s discretion in denying leave to amend a petition “[g]iven the generality of th[e] claim and the timing of its assertion”). - 11 - J-S25018-20 In rejecting Appellant’s Motion to Amend, the PCRA court considered both the timeliness of Appellant’s request, as well as the lack of factual support for his claim. The court observed that Appellant “provided no information or evidence to support his claim” that a Commonwealth witness had perjured himself at Appellant’s trial. PCRA Ct. Op. and Order, 7/19/19, at 2. In a single averment, Appellant had alleged that he “believe[d] that the Commonwealth allowed [a] witness . . . to present perjured testimony”, thus entitling Appellant to a new trial. Motion to Amend at 1 (unpaginated). Considering this averment and its belated assertion, the PCRA court reasoned that Appellant’s “subjective belief concerning the credibility of an adverse witness . . . is not an adequate basis upon which to open the record and permit the amending of [Appellant’s] PCRA Petition.” PCRA Ct. Op. and Order, 7/19/19, at 2-3. We agree. Appellant provided no adequate explanation or argument to support his Motion to Amend filed nine months after the PCRA hearing. Appellant did not include an affidavit from the Commonwealth witness recanting his trial testimony or any other documentary evidence establishing a factual predicate underlying his bald claim. Appellant did not assert that the witness’s testimony was unfairly prejudicial or offer any explanation as to how its presentation undermined the truth determining process. Appellant did not allege the Commonwealth knowingly presented this testimony to the jury. Indeed, Appellant did not even identify the substance or context of this allegedly perjurious testimony. See generally Motion to Amend. - 12 - J-S25018-20 Moreover, considering that Appellant’s evidentiary hearing occurred approximately nine months prior to his filing of the Motion to Amend, it was appropriate for the PCRA court to consider the timeliness of Appellant’s request balanced against the absolute lack of support for Appellant’s claim. Thus, we conclude that Appellant presented a bald allegation of error that warranted no further consideration. Conclusion Based on the foregoing, we affirm the PCRA court’s denial of relief.7 The parties are instructed to annex the PCRA court’s September 24, 2019 Opinion to any future filings. Application for Extension of Time denied. Application to Withdraw as Counsel granted. Order affirmed. ____________________________________________ 7 The PCRA court also determined that it lacked jurisdiction to consider Appellant’s Motion to Amend. See PCRA Ct. Op. and Order, 7/19/19, at 1-2 (concluding that Appellant’s Motion was subject to the PCRA’s timeliness requirements). We disagree with this analysis. Where, as here, the PCRA court considers a motion to amend a timely petition for collateral relief, the relevant analysis is governed by the liberal standard set forth in Rule 905, rather than the jurisdictional, timeliness provisions of the PCRA. See Crispell, 193 A.3d at 929 (under similar circumstances, expressly rejecting a jurisdictional analysis). Notwithstanding its erroneous determination, the PCRA court proceeded to consider whether to grant Appellant leave to amend. Thus, we may review and affirm the court’s exercise of discretion. See Commonwealth v. Oliver, 128 A.3d 1275, 1279 (Pa. Super. 2015) (noting that we may affirm the PCRA court on any grounds supported by the record). - 13 - J-S25018-20 Judgment Entered. Joseph D. Seletyn, Esq. Prothonotary Date: 06/30/2020 - 14 - ., l;, ' Circulated 06/11/2020 08:33 AM i,.J' ! ,._ ' IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA 1;,( ' CRIMINAL DIVISION (· . . ' 1.;r,1 COMMONWEALTH OF PENNSYLVANIA : NO. CP-67-CR-0000098-2014 i":··- ' ' ' vs. l•:':'· ' ,/. ' HALIM BOWEN, ' ' '""" Defendant './ ' J �--.. ' COUNSEL OF RECORD: j- ..... ' -i 0 U; U1 James E. Zamkotowicz, Esquire Aaron Holt, Esquire r:Y ' I: r! Counsel for the Commonwealth Counsel for Defendant ' ' '""" OPINION AND ORDER iJ ' Before the Court is the Defendant's petition for relief under the Post-Conviction Relief Act ("PCRA"). For the reasons addressed below, the Court hereby ORDERS that the defendant's request for relief under the Post-Conviction Relief Act (hereinafter: PCRA) is DENIED. PROCEDURAL HISTORY Defendant was found guilty of First Degree Murder on December 10, 2014. Defendant filed a timely PCRA Petition on October 3, 2017. {Defense counsel filed a Memorandum of Law in support of the PCRA petition on January 24, 2018.} A PCRA hearing was held on July 23, 2018 before this court. ISSUES PRESENTED The Defendant raises five issues before the Court: (1) a constitutional violation due to the statute he was charged under not being "properly enacted"; (2) a constitutional violation due to improper judgement; (3) ineffectiveness of defense counsel for failing to alleviate prejudice caused by prosecutor's closing statements; (4) ineffectiveness of counsel for failing to request a limiting instruction on gang testimony and media coverage; (5) ineffectiveness of counsel for failing to introduce alternative surveillance video angles. 1,/) !JI STANDARD OF REVIEW When a defendant claims that the law is unconstitutional or improperly enacted, they must i·--' i.J_! show, "A violation of the Constitution of this Commonwealth or the Constitution or laws of the !>-,.� J United States 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." , ... l:J·.1 Commonwealth v. Rivers, 567 Pa. 239, 244 (2001)(citing 42 Pa.C.S.A. § 9543(a)(2))(emphasis i· .. _1 added). Per the Pennsylvania Supreme Court in Rivers, PCRA petitioners must plead and prove .J.J/ their assertions by a preponderance of the evidence. Id. at 245. The Court stated, "[T]he petitioner must establish by a preponderance of evidence that because of the alleged constitutional violation :--i or ineffectiveness, no reliable adjudication of guilt or innocence could have taken place." Id. at 246 ( quotation marks, brackets, and citations omitted). The Rivers Court also explained that the burden is on the PCRA petitioner to demonstrate that they are not merely attempting to re-litigate issues that have been or could have been brought elsewhere: Finally, petitioner must plead and prove that the issue has not been waived or finally litigated, and if the issue has not been litigated earlier, the petitioner must plead and prove that the failure to litigate could not have been the result of any rational, strategic or tactical decision by counsel. Id. (emphasis added; quotation marks, brackets, and citations omitted); See also 42 Pa.C.S.A. § 9543(a)(3)(petitioner must plead and prove by a preponderance of the evidence "[t]hat the allegation of error has not been previously litigated or waived.") As stated above, in addition to showing that these issues have not previously been litigated, a petitioner must make clear that the determination of their guilt or innocence was made impossible by the alleged constitutional violation by the Commonwealth. They may not merely claim that there was a constitutional violation without tying it to the determination of their culpability. 2 J;/J i;.l'I In regard to Defendant's with ineffectiveness of counsel claims, in Strickland v.