J-S24037-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DWIGHT BOWEN :
:
Appellant : No. 2177 EDA 2021
Appeal from the PCRA Order Entered October 12, 2021
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0909801-2001
BEFORE: PANELLA, P.J., LAZARUS, J., and PELLEGRINI, J.*
MEMORANDUM BY PELLEGRINI, J.: FILED AUGUST 8, 2022
Dwight Bowen (Bowen) appeals pro se from the order denying his third
petition filed pursuant to the Post-Conviction Relief Act (PCRA), 42 Pa.C.S.
§§ 9541-9546, in the Court of Common Pleas of Philadelphia County (PCRA
court) as untimely. He claims that the newly-discovered fact exception is
applicable to him because a June 2020 Philadelphia Inquirer article mentions
Detective John Bell, an investigator in this case, as part of a story about
alleged police misconduct in another, wholly unrelated case. He also claims
governmental interference for the Pennsylvania State Police’s (PSP) alleged
seizure of purported witness affidavits from his prison cell. We affirm.
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* Retired Senior Judge assigned to the Superior Court.
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We take the following factual background and procedural history from
the PCRA court’s October 12, 2021 opinion and our independent review of the
certified record.
I.
On the night of June 5, 2001, Bowen engaged in a physical altercation
with several men outside of 1710 Lehigh Avenue, Philadelphia. He returned
home to where he lived with Cynthia Loney and her minor daughter, Tiffany
Smith. He informed Ms. Smith that he was “beaten up” and that he would
return to 1710 Lehigh Avenue to “bomb the house.” (See N.T. 2/19/04, at
11-20).
After leaving the home and returning a few hours later, he again told
Ms. Smith of his plans and stated that he crafted Molotov cocktails, which he
had stored elsewhere. Ms. Loney and Ms. Smith attempted to talk Bowen out
of his plan, but he left the home around 3:00 a.m. He returned half-an-hour
later, asking the two women if they “hear[d] the fire engines” and told them
that he “blew the house up.” (Id. at 11-20). Bowen fell asleep and woke at
approximately 6:30 a.m., telling Ms. Loney and Ms. Smith to turn on the news.
When they saw the news of the 1710 Lehigh Avenue fire, Bowen stated, “I
killed them two kids” and told the women not to “snitch.” (Id. at 19-20).
The “two kids” to which Bowen referred were a three-year-old and a
one-year-old, who were asleep in the 1710 Lehigh Avenue home. Both
children died in the fire, and Bowen was apprehended on August 22, 2004.
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A jury trial commenced on February 17, 2004. In pertinent part, the
Commonwealth presented the testimony of Ms. Smith, who testified about
Bowen’s threat to firebomb the home and his confession. (See N.T. Trial,
9/18/04, at 9-19); (N.T. Trial, 2/19/04, at 11-32). Witness Paris Dennis
testified about the physical altercation between himself, Bowen and two other
individuals that preceded the fire. (See N.T. Trial, 2/17/04, at 77-101).
Vernon Reynolds testified that he spoke with Bowen after the fight and that
Bowen told him he wanted to firebomb the home. (See id. at 118-33).
At the conclusion of the Commonwealth’s evidence, Bowen elected to
enter a negotiated guilty plea to two counts of second-degree murder and one
count of simple assault1 to avoid the death penalty. The court conducted an
extensive colloquy and imposed the mandatory sentence of two terms of life
imprisonment to be served consecutively. (See N.T. Trial, 2/19/04, at 31-
34). Bowen did not file post-sentence motions or a direct appeal.
Bowen filed a pro se PCRA petition on May 12, 2004, in which he sought
to withdraw his guilty plea and raised several issues. He alleged that trial
counsel was ineffective for: (1) inducing his plea; (2) failing to impeach Ms.
Smith with a redacted statement in which she alleged that police coerced her
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1“The unrelated charge of simple assault arose from an assault upon a female
correctional officer. The concurrent sentence of one to two years
imprisonment was imposed upon this offense.” (Commonwealth v. Bowen,
870 EDA 2005, at *2 n.1).
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into testifying; and (3) failing to impeach Mr. Reynolds about the fact that he
received favorable treatment in his own case to induce his plea. He also
sought discovery about why Detective Bell no longer worked for the
Philadelphia Police Department. (See Pro se PCRA Petition, 5/12/04, at 6
¶ 13, 7 ¶ 14, Addendum ¶¶ 1, 3, 9). Because Bowen had entered the guilty
plea admitting to the crimes, appointed counsel filed an amended PCRA
petition focusing on whether Bowen was entitled to withdraw the plea. (See
Amended PCRA Petition, 10/05/04, at 4). The PCRA court denied the petition
on February 3, 2005. This Court affirmed the denial on November 16, 2005,
and the Pennsylvania Supreme Court denied his petition for allowance of
appeal on April 20, 2006. (See Commonwealth v. Bowen, 890 A.2d 1093
(Pa. Super. filed Nov. 16, 2005) (unpublished memorandum), appeal denied,
897 A.2d 450 (Pa. 2006)).
Bowen filed a second PCRA petition on December 11, 2006, again
seeking to withdraw his guilty plea and the PCRA court dismissed the petition
as untimely. On appeal, he argued the petition should be treated as timely
because counsel misinformed him of the filing deadline and was ineffective for
failing to use all peremptory challenges. (See Commonwealth v. Bowen,
1913 EDA 2007, at *3 (Pa. Super. filed Mar. 19, 2008) (unpublished
memorandum)). This Court affirmed the dismissal and he did not petition for
allowance of appeal.
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On March 1, 2021, Bowen filed the PCRA petition currently under review.
He invoked the newly-discovered facts exception to the PCRA time-bar,
arguing that a June 2020 Philadelphia Inquirer article that mentioned the
alleged misconduct of Detective Bell in an unrelated case constituted a newly-
discovered fact. Specifically, he maintained that it established that Detective
Bell, one of the officers assigned to his case, used coercive tactics to obtain
witness statements against him. (See Pro se PCRA Petition, 3/01/21 at 3).
He maintained that he did not attach affidavits from witnesses Ms. Smith, Ms.
Loney and Mr. Reynolds that he had provided to trial counsel because they
appeared to have been thrown away when he was transferred between
prisons, and that, although he wanted a hearing, he was unaware of the
witnesses addresses or dates of birth. (See id. at 4 ¶ 6, 6 ¶ 12). The
Commonwealth responded that the petition should be dismissed because it
was untimely and he could not provide certifications from the witnesses
justifying a hearing, but that it would not object if the court elected to appoint
counsel to assist Bowen to obtain the necessary certifications and to reacquire
the affidavits he allegedly provided to trial counsel. (See Commonwealth’s
Response to PCRA, 8/27/21, at 1, 8). On September 7, 2021, the court issued
Rule 907 notice of its intent to dismiss the petition without a hearing. See
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Pa.R.Crim.P. 907(1). It formally dismissed the petition as untimely with no
exception proven on October 12, 2021. Bowen timely appealed.2, 3
II.
A.
Before considering the merits of Bowen’s PCRA petition, we must first
determine whether the PCRA court properly found that it is untimely under
the PCRA’s jurisdictional time-bar. A PCRA petition, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final.” 42 Pa.C.S. § 9545(b)(1). A judgment becomes final at the
conclusion of direct review, “including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S. § 9545(b)(3). Because
the timeliness requirements of the PCRA are jurisdictional in nature, courts
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2The court did not order Bowen to file a statement of errors complained of on
appeal. See Pa.R.A.P. 1925(b).
3 Proper appellate review of a PCRA court’s dismissal of a PCRA petition is
limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa. Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa. Super.
2014) (citations omitted). “This Court grants great deference to the findings
of the PCRA court, and we will not disturb those findings merely because the
record could support a contrary holding.” Commonwealth v. Hickman, 799
A.2d 136, 140 (Pa. Super. 2002) (citation omitted).
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cannot address the merits of an untimely petition. See Commonwealth v.
Moore, 247 A.3d 990, 998 (Pa. 2021).
Bowen’s judgment of sentence became final on March 21, 2004, when
his time to file a direct appeal to this Court expired. See 42 Pa.C.S.
§ 9545(b)(3). Therefore, he had until March 21, 2005, to file a timely PCRA
petition. See 42 Pa.C.S. § 9545(b)(1). Because Bowen did not file the instant
PCRA petition until approximately sixteen years later, on March 1, 2021, it is
facially untimely, and we lack jurisdiction to consider the appeal’s merits
unless he pleads and proves one of the three limited exceptions to the time-
bar:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
claim in violation of the Constitution or laws of this Commonwealth
or the Constitution or laws of the United States;
(ii) the facts upon which the claim is predicated were unknown to
the petitioner and could not have been ascertained by the exercise
of due diligence; or
(iii) the right asserted is a constitutional right that was recognized
by the Supreme Court of the United States or the Supreme Court
of Pennsylvania after the time period provided in this section and
has been held by that court to apply retroactively.
42 Pa.C.S. § 9545(b)(1)(i)-(iii).
B.
Bowen argues that the discovery of the June 2020 Philadelphia Inquirer
article that referenced the alleged misconduct of Detective Bell in an unrelated
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2017 case4 was a newly-discovered fact that supported his claim that the
officer coerced or threatened witnesses Cynthia Loney, Tiffany Smith and Paris
Dennis to give false statements in this case. (See Bowen’s Brief, at 2); (Pro
se PCRA Petition, at 3).5
Bowen invokes the newly-discovered fact exception. As recently
observed by this Court:
The newly-discovered fact exception “renders a petition timely
when the petitioner establishes that [‘]the facts upon which the
claim is predicated were unknown to the petitioner and could not
have been ascertained by the exercise of due diligence.[’]”
Commonwealth v. Small, 238 A.3d 1267, 1271 (Pa. 2020),
(quoting 42 Pa.C.S. § 9545(b)(1)(ii).) A PCRA court must first
determine “whether the facts upon which the claim is predicated
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4 According to the Commonwealth, the article “explains that the
Commonwealth moved to nolle pros John Miller’s case because of alleged
misconduct by Detective Bell and other officers” in failing to tell anyone
outside the police department about exculpatory evidence, including that the
primary witness (who later confessed to the subject crime) provided verifiably
false information. (Commonwealth’s Brief, at 9) (emphasis added).
5 Bowen also maintains that although he had affidavits from Ms. Smith and
Mr. Reynolds supporting his allegation, the PSP committed governmental
interference by confiscating them, thus making him unable to raise the claim
previously. (See Bowen’s Brief, at 3). The claim would not afford him relief
where the record reveals that Bowen raised the claim that Mr. Reynolds and
Ms. Smith were allegedly coerced in 2004; thus, he is unable to establish that
any later alleged confiscation of the purported affidavits resulted in an inability
to raise the coercion claim in a timely petition. See Commonwealth v. Abu-
Jamal, 941 A.2d 1263, 1268 (Pa. 2008), cert. denied, 555 U.S. 916 (2008)
(To establish governmental interference, the petitioner must “plead[] and
prov[e] the failure to previously raise the claim was the result of interference
by government officials, and the information could not have been discovered
earlier with the exercise of due diligence.”); see also Trivigno, infra at *5
(“[A]n affidavit, itself, cannot be a newly-discovered fact but, rather, the ‘fact’
may be the information reported in the affidavit.”).
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were unknown to the petitioner[.]” Id. at 1282 (original quotation
marks omitted). If the PCRA court concludes that the facts were
unknown, then the PCRA court must next examine whether “the
facts could have been ascertained by the exercise of due diligence,
including an assessment of the petitioner’s access to public
records.” Id. (citation omitted).
Commonwealth v. Trivigno, 262 A.3d 472, at *3 (Pa. Super. filed Aug. 6,
2021).6 Under the newly-discovered fact exception, “the focus is on newly
discovered facts, not on a new source for previously unknown facts.”
Commonwealth v. Marshall, 947 A.2d 714, 720 (Pa. 2008) (emphasis
added).
Bowen argues that the June 2020 Philadelphia Inquirer article naming
Detective Bell as being part of an investigation into misconduct in an unrelated
case was a newly-discovered fact supporting a timeliness exception. (See
Bowen’s Brief, at 2). Again, we find Trivigno to be instructive. In Trivigno:
Appellant argue[d], in sum, that a newspaper article
describing or encouraging ongoing investigations of [an
investigating detective]’s alleged misconduct in other cases
satisfies the newly-discovered fact exception to the PCRA
jurisdictional time-bar. We find Commonwealth v. Chmiel,
173 A.3d 617 (Pa. 2017) instructive in resolving the precise issue
before us. In Chmiel, our Supreme Court held that an FBI press
release, and the attendant admissions by the FBI contained
therein, constituted a newly-discovered fact for purposes of
triggering an exception to the PCRA jurisdictional time-bar.
Chmiel, 173 A.3d at 629. Chmiel asserted that an FBI press
release and a subsequent Washington Post article publicizing the
press release contained facts which satisfied the newly-discovered
fact exception. Id. at 625. Inherent in both the FBI press release
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6 “Non-precedential Superior Court decisions filed after May 1, 2019 may be
cited for their persuasive value.”
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and the Washington Post article were the facts that (1) “the FBI
publicly admitted that the testimony and statements provided by
its analysts about microscopic hair comparison analysis were
erroneous in the vast majority of cases” and (2) “the FBI had
trained many state and local analysts to provide the same
scientifically flawed opinions in state criminal trials.” Id. Our
Supreme Court concluded that it was not the source of the facts,
i.e., a press release or a newspaper article, that satisfied the
newly-discovered fact exception but, rather, it was the
information contained in those media sources which satisfied the
newly-discovered fact exception. Id. at 628. Stated simply, facts
are not what a reader gleans from media reports or newspaper
articles but, instead, facts are the substantive events, i.e., the
FBI’s admission of error, which prompted the report by the media.
See Castro, 93 A.3d at 825 n.11 (reiterating that, “[facts] cannot
consist of what one hears on the news” (citation omitted))[.] …
… [Here,] [a]lthough the newspaper article reports instances of
alleged misconduct by [the subject detective] in his investigation
of other criminal cases, the newspaper article, unlike the FBI press
release in Chmiel, does not specifically cite any admissions or
conclusive findings of wrong-doing by [the detective] that may be
linked to Appellant’s case. Id. … Therefore, Appellant failed to
demonstrate that the newspaper article contained a fact that
triggered the newly-discovered fact exception set forth at 42
Pa.C.S.A. § 9545(b)(1)(ii).
Trivigno, supra at *4 (one case citation omitted).7
Here, the Commonwealth represents that the Philadelphia Inquirer
article in question was predicated on the Commonwealth’s motion to nolle
pros a case because of police misconduct, which included that of Detective
Bell. According to both the Commonwealth and the PCRA court, the article
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7 Instantly, Bowen has not provided this Court with a copy of the
Philadelphia Inquirer article, thus impeding our review. Therefore, we will
rely on the representations of the court and the Commonwealth about what
it contained.
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mentions Detective Bell one time when it states: “Andrew Richman, chief
of staff in the city’s Law Department, declined to comment on Miller’s
lawsuit, which names the city as a defendant, as well as the detectives
involved in his case: Jeffrey Piree, William Coogan, Richard Bova, John
Bell, and Michael Sharkey.” (PCRA Ct. Op., at 1 n.1); (Commonwealth’s
Response to PCRA Petition, at 4). Therefore, it is not clear if the article
mentions instances of Detective Bell’s alleged misconduct in the other case.
However, even if it does, there is no fact of any finding of wrongdoing in
this case. Hence, Bowen has failed to establish that the article contained
a fact that triggered the newly-discovered facts exception. See Trivigno,
supra at *4.
Additionally, in 2014, he was aware of his claims that Detective Bell
had coerced Ms. Smith into testifying and had given Mr. Reynolds favorable
treatment in his own case to induce his testimony. Although PCRA counsel
elected not to pursue these claims at that time, Bowen failed to allege any
ineffectiveness on counsel’s part in this regard within the one-year time-
limit for doing so.8
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8 We make no finding as to PCRA counsel’s effectiveness.
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C.
Moreover, even assuming arguendo that the article itself could somehow
be construed as a “fact” or even contained facts about Bowen’s case, Bowen
would not be entitled to a new trial where, at the conclusion of the
Commonwealth’s evidence, he voluntarily entered a negotiated guilty plea to
avoid the death penalty, and a panel of this Court has conclusively determined
that “[t]he record … provides overwhelming support for the conclusion of the
PCRA court that appellant made a knowing, intelligent, and voluntary decision
to enter a guilty plea.” (Commonwealth v. Bowen, 870 EDA 2005, at *5
(Pa. Super. filed Nov. 10, 2005) (unpublished memorandum). The panel
observed:
In the context of a post-sentence challenge to a guilty plea,
this Court has observed that a defendant may not successfully
claim that he knowingly lied to the court while he was under oath,
even where he avers that counsel induced the lies.
A criminal defendant who elects to plead guilty has a duty to
answer questions truthfully. We [cannot] permit a defendant
to postpone the final disposition of his case by lying to the
court and later alleging that his lies were induced by counsel.
Commonwealth v. Pollard, 832 A.2d 517, 524 (Pa. Super.
2003) (citation omitted).
[Here,] [a]fter nearly one week of trial, appellant decided to
accept the Commonwealth’s offer to enter a negotiated guilty plea
in exchange for sentences of life imprisonment, thus foreclosing
the possibility of a sentence of death. Appellant entered into both
an oral and a written colloquy and the judge explained to appellant
the nature of the charges and the factual basis for the guilty plea.
Further, counsel for appellant placed on the record (1) that he had
discussed at length with appellant that the Commonwealth was
seeking the death penalty but had offered a plea agreement
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carrying a penalty of life imprisonment, and (2) that he had
advised appellant that it was his professional opinion that,
because of the numerous aggravating circumstances, there was a
likelihood that appellant would be sentenced to death. The trial
judge reiterated to appellant the possible sentences for murder
and simple assault. Thus, the sentencing options were fully
explained to appellant prior to entry of his plea. Appellant
indicated that he had not been forced, threatened, or coerced into
entering the plea, and that he fully understood his rights, and was
satisfied with his counsel. Appellant indicated that he was
entering the guilty plea because he was guilty and also to avoid
the death penalty.
(Id. at *5-6) (emphasis added).
Hence, even if either the Philadelphia Inquirer article were a “fact” for
the newly-discovered facts exception to the PCRA or it contained a fact about
misconduct in Bowen’s case, it would not afford Bowen relief. He entered a
negotiated guilty plea in which he admitted his guilt and this Court already
found this was voluntary and knowingly entered. Hence, this “fact” would not
change the outcome, even if he now regrets entering the plea. In other words,
even if the article established that Detective Bell coerced the witness
statements in this case, and Bowen claims that he was lying under oath when
he admitted his guilt, this would not impact the fact that Bowen entered a
voluntary and knowing plea. See Pollard, supra at 524.9
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9 We also note that, even were the article considered “after discovered
evidence,” it would not form the basis for a new trial where Bowen failed to
establish that the claims surrounding Detective Bell’s misconduct in the
unrelated case would be used for any purpose other than impeachment of
witness testimony. As early as May 2004, Bowen was on notice that Detective
Bell was no longer with the Philadelphia Police Department and of the alleged
(Footnote Continued Next Page)
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Hence, the PCRA court’s decision is supported by the record and free of
legal error where Bowen failed to establish a timeliness exception and, even
if he had, he would not be entitled to relief. See Miller, supra at 992;
Pollard, supra at 524.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 8/8/2022
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claims of coercion of Ms. Smith and Mr. Reynolds, and he claimed that trial
counsel was ineffective for failing to impeach the witness testimony with these
claims of coercion. See Commonwealth v. Griffin, 137 A.3d 605, 610 (Pa.
Super. 2016) (“A defendant seeking a new trial must demonstrate he will not
use the alleged after-discovered evidence solely to impeach a witness’s
credibility.”) (internal quotation marks omitted).
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