J-S50037-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                             IN THE SUPERIOR COURT OF
                                                               PENNSYLVANIA
                            Appellee

                       v.

MARKALE ALSAMAD SOWELL

                            Appellant                       No. 2079 MDA 2015


                Appeal from the PCRA Order September 9, 2015
               In the Court of Common Pleas of Lycoming County
              Criminal Division at No(s): CP-41-CR-0001643-2010


BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.:                                      FILED JUNE 29, 2016

        Appellant,   Markale     Alsamad       Sowell,   appeals   pro   se   from    the

September 9, 2015 order denying his first petition for relief filed pursuant to

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1                   After

careful review, we affirm.

        We summarize the relevant procedural history of this case as follows.

On August 3, 2011, a jury convicted Appellant of one count each of fleeing

or attempting to allude a police officer, reckless driving, driving without a

license, persons not to possess firearms, firearms not to be carried without a

license, simple assault, and two counts of recklessly endangering another

____________________________________________
*
    Former Justice specially assigned to the Superior Court.
1
    The Commonwealth elected not to file a brief in this matter.
J-S50037-16


person (REAP).2        On November 30, 2011, the trial court imposed an

aggregate sentence of 8½ to 17 years’ imprisonment.              Appellant filed a

timely notice of appeal.       On November 26, 2013, this Court affirmed the

judgment of sentence, and our Supreme Court denied Appellant’s petition for

allowance of appeal on July 30, 2014. Commonwealth v. Sowell, 91 A.3d

1296 (Pa. Super. 2013) (unpublished memorandum), appeal denied, 96

A.3d 1027 (Pa. 2014). Appellant did not seek a writ of certiorari from the

United States Supreme Court.

       On September 29, 2014, Appellant filed the instant timely pro se PCRA

petition.    The PCRA court appointed counsel, who subsequently filed a

petition to withdraw as counsel along with a “no-merit” letter pursuant to

Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), Commonwealth v.

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. Upon

receiving    the   Turner/Finley       letter,   Appellant requested that   he   be

permitted to proceed pro se.           After a colloquy, the PCRA court granted

Appellant’s request. On August 4, 2015, the PCRA court entered an order

notifying Appellant of its intention to dismiss his PCRA petition without a

hearing under Pennsylvania Rule of Criminal Procedure 907. Appellant filed

a timely pro se response on August 24, 2015. On September 9, 2015, the



____________________________________________
2
 75 Pa.C.S.A. §§ 3733, 3736, 1501; and 18 Pa.C.S.A. §§ 6105, 6106, 2701,
2705, respectively.



                                           -2-
J-S50037-16


PCRA court entered an order denying Appellant’s PCRA petition.              On

September 18, 2015, Appellant filed a timely pro se notice of appeal.3

       On appeal, Appellant raises the following three issues for our review.

              I.     Whether the trial court erred when it
                     sentenced [Appellant] to a term of 18 to 36
                     months[’] incarceration for a second offense
                     [of] fleeing and eluding, specifically where
                     [Appellant] has previously been convicted of
                     fleeing and eluding[,] is it not against the
                     statue [sic] to sentence [Appellant] to more
                     than 6 months?

              II.    Whether it was error to sentence [Appellant]
                     on the charge of [REAP], when specifically the
                     alleged victims of this charge failed to appear
                     and have never appeared to be cross[-
                     ]examined and have their testimony entered,
                     thereby convicting [Appellant] on mere
                     hearsay testimony?

              III.   Whether the [trial] court committed error when
                     it held [sic] the verdict for the charges of
                     [REAP] where one of the essential elements
                     was not met, specifically the element of fear of
                     death or bodily injury, as neither of the victims
                     ever appeared at any of the proceedings and
                     were otherwise available to do so?

Appellant’s Brief at 3.4




____________________________________________
3
  Appellant and the PCRA court have complied with Pennsylvania Rule of
Appellate Procedure 1925.
4
  We note that Appellant’s brief does not contain pagination. Therefore, we
have assigned a page number to each corresponding page after the table of
contents for the convenience of the reader.



                                           -3-
J-S50037-16


      We begin by noting our well-settled standard of review. “In reviewing

the   denial   of   PCRA   relief,   we   examine   whether   the   PCRA   court’s

determination is supported by the record and free of legal error.”

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation

marks and citation omitted). “The scope of review is limited to the findings

of the PCRA court and the evidence of record, viewed in the light most

favorable to the prevailing party at the trial level.”        Commonwealth v.

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted).          “It is well-settled

that a PCRA court’s credibility determinations are binding upon an appellate

court so long as they are supported by the record.”           Commonwealth v.

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth

v. Rigg, 84 A.3d 1080, 1084 (Pa. Super. 2014) (citation omitted).

      In his first issue, Appellant argues that his sentence of 18 to 36

months’ imprisonment for fleeing or eluding is illegal, because the statutory

maximum was six months’ imprisonment under 75 Pa.C.S.A. § 6503.

Appellant’s Brief at 7. It is axiomatic that “challenges to an illegal sentence

can never be waived and may be reviewed sua sponte by this Court.”

Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013)

(citation omitted). It is equally well-established that Pennsylvania law does

not tolerate an illegal sentence, for “[a] challenge to the legality of a

sentence … may be entertained as long as the reviewing court has


                                          -4-
J-S50037-16


jurisdiction.”   Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa.

Super. 2011) (citation omitted). “If no statutory authorization exists for a

particular sentence, that sentence is illegal and subject to correction.”

Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa. Super. 2013) (citation

omitted). “An illegal sentence must be vacated.” Id. “Issues relating to the

legality of a sentence are questions of law[.] … Our standard of review over

such   questions   is   de   novo   and   our   scope    of    review   is   plenary.”

Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014) (citations

omitted).

       It is true that at the time Appellant was sentenced, Section 6503 of

the Motor Vehicle Code provided as follows.

             § 6503.     Subsequent       convictions     of    certain
             offenses

             (a) General offenses.--Every person convicted of a
             second or subsequent violation of any of the
             following provisions shall be sentenced to pay a fine
             of not less than $200 nor more than $1,000 or to
             imprisonment for not more than six months, or both:

             Section 1543(a) (relating to driving while operating
             privilege is suspended or revoked) except as set
             forth in subsection (a.1).

             Section 3367 (relating to racing on highways).

             Section 3733 (relating to fleeing or attempting to
             elude police officer).

             Section 3734 (relating to driving without lights to
             avoid identification or arrest).

             Section 3748 (relating to false reports).

                                      -5-
J-S50037-16



75 Pa.C.S.A. § 6503(a).5          In this case, Appellant was sentenced under

Section 3733(a.2), which provides as follows.

              § 3733. Fleeing or attempting to elude police
              officer

                                               …

              (a.2) Grading.—

              (1) Except as provided in paragraph (2), an offense
              under subsection (a) constitutes a misdemeanor of
              the second degree. Any driver upon conviction shall
              pay an additional fine of $500. This fine shall be in
              addition to and not in lieu of all other fines, court
              expenses, jail sentences or penalties.

              (2) An offense under subsection (a) constitutes a
              felony of the third degree if the driver while fleeing
              or attempting to elude a police officer does any of
              the following:

                     (i) commits a violation of section 3802
                     (relating to driving under influence of alcohol
                     or controlled substance);

                     (ii) crosses a State line; or

                     (iii) endangers a law enforcement officer or
                     member of the general public due to the driver
                     engaging in a high-speed chase.

Id. § 3733(a.2).6


____________________________________________
5
  On July 9, 2012, the General Assembly amended Section 6503(a) to
remove Section 3733 from its text.
6
  On direct appeal, we previously noted that “[Appellant] took the police on a
high[-]speed chase through busy intersections in the City of Williamsport.”
(Footnote Continued Next Page)


                                           -6-
J-S50037-16


      This Court already considered and rejected Appellant’s argument in

Commonwealth v. Bowen, 55 A.3d 1254 (Pa. Super. 2012), appeal

denied, 64 A.3d 630 (Pa. 2013).                  In Bowen, this Court undertook an

extensive analysis of Sections 3733(a.2) and 6503.               At the conclusion of

which, this Court held that “the General Assembly created Section

3733(a.2)(2) to add an aggravated offense level to the crime of fleeing or

attempting to elude police.” Id. at 1269-1270. We concluded that Section

3733(a.2) is a specific provision which controls the more general provision at

Section 6503. Id. at 1270. Therefore, in such cases, we concluded that the

statutory maximum sentence was not six months’ imprisonment pursuant to

Section 6503, as Appellant argues here.              Id.   As Appellant’s argument is

foreclosed by Bowen, we conclude Appellant’s sentence is not illegal.7

      We address Appellant’s remaining two issues together, as his brief

does so as well. Appellant argues that the Commonwealth failed to meet its

burden in proving REAP because “neither victim of this crime had given a



                       _______________________
(Footnote Continued)

Sowell, supra at 2 (some brackets added), quoting Trial Court Opinion,
11/30/12, at 1-2. The jury explicitly made this finding on its verdict slip.
N.T., 8/3/11, at 28.
7
 Appellant acknowledges Bowen, but baldly states that we should ignore it
because it was decided subsequent to his sentence. Appellant’s Brief at 8.
We decline Appellant’s invitation to ignore a binding case that is directly on
point, which incidentally was decided while Appellant’s direct appeal was
pending.



                                            -7-
J-S50037-16


statement, appeared at court, or testified as to any part of this crime[.]”

Appellant’s Brief at 9.

      In order to be eligible for relief under the PCRA, the statute requires

the petitioner to show the following by a preponderance of the evidence.

             § 9543. Eligibility for relief

             (a) General rule.--To be eligible for relief under
             this subchapter, the petitioner must plead and prove
             by a preponderance of the evidence all of the
             following:

                                       …

             (2) That the conviction or sentence resulted from
             one or more of the following:

                   (i) A violation of the Constitution of this
                   Commonwealth or the Constitution or laws of
                   the 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.

                                       …

             (3) That the allegation of error has not been
             previously litigated or waived.

                                       …

42 Pa.C.S.A. § 9543(a). An issue is waived under the PCRA “if the petitioner

could have raised it but failed to do so before trial, at trial, during unitary

review, on appeal or in a prior state postconviction proceeding.”          Id.

§ 9544(b).




                                     -8-
J-S50037-16


       Here, Appellant’s challenge to the sufficiency of the Commonwealth’s

evidence could have been raised on direct appeal, but was not.            See

generally Pa.R.Crim.P. 606(A)(7). Therefore, Appellant’s second and third

issues are waived under the parameters of the PCRA.8        See 42 Pa.C.S.A.

§§ 9543(a), 9544(b); accord Commonwealth v. Rachak, 62 A.3d 389,

391 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013).

       Based on the foregoing, we conclude all of Appellant’s issues are either

devoid of merit or waived. Accordingly, the PCRA court’s September 9, 2015

order is affirmed.

       Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/29/2016




____________________________________________
8
  We note that Appellant referenced this issue on direct appeal as an alleged
violation of the Confrontation Clause, and we found it to be without merit.
Sowell, supra at 10-11.



                                           -9-
