Com. v. Bowen, H.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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).
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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.

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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.]

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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

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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.

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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

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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).

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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.

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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.

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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).

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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”).

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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.

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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).

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Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 06/30/2020

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IN THE COURT OF COMMON PLEAS OF YORK COUNTY, PENNSYLVANIA
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COMMONWEALTH OF PENNSYLVANIA : NO. CP-67-CR-0000098-2014
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HALIM BOWEN,
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Defendant
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J �--.. ' COUNSEL OF RECORD:
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James E. Zamkotowicz, Esquire Aaron Holt, Esquire
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I: r! Counsel for the Commonwealth Counsel for Defendant
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OPINION AND ORDER
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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.
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STANDARD OF REVIEW

When a defendant claims that the law is unconstitutional or improperly enacted, they must
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show, "A violation of the Constitution of this Commonwealth or the Constitution or laws of the
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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."
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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
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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
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In regard to Defendant's with ineffectiveness of counsel claims, in Strickland v.