J-S02005-18


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA            :   IN THE SUPERIOR COURT OF
                                        :        PENNSYLVANIA
                                        :
             v.                         :
                                        :
                                        :
JOSHUA BOWEN                            :
                                        :
                       Appellant        :   No. 3159 EDA 2016

              Appeal from the PCRA Order September 22, 2016
  In the Court of Common Pleas of Philadelphia County Criminal Division at
                      No(s): CP-51-CR-1200331-2004


BEFORE: BOWES, J., NICHOLS, J., and RANSOM, J.*

MEMORANDUM BY BOWES, J.:                              FILED MAY 21, 2018

      Joshua Bowen appeals from the order dismissing his second PCRA

petition as untimely. We affirm.

      We previously set forth the facts underlying Appellant’s convictions in

our decision affirming his judgment of sentence, which we adopted from the

trial court opinion.

      On the night of August 21, 2004, [Appellant] (also known as
      “Wop Wop”) and Jermaine Goss fought over five dollars ($5.00)
      that Goss owed [Appellant] for a bag of marijuana Goss had
      previously purchased from [Appellant]. The fight took place as a
      group of people gathered at the corner of 15th and Hazard
      Street, Philadelphia. The fight initially began as a verbal
      confrontation but escalated when [Appellant] punched Goss. The
      two men wrestled each other to the ground where they
      continued to yell at one another. The fight ended.

      [Appellant] got up, entered his house, located at 2538 Hazard
      Street, but when [Appellant] reemerged from the house, he
      appeared to be holding something underneath his shirt in the
      waistband of his pants. [Appellant’s] neighbor, Keith Furman,

* Retired Senior Judge Assigned to the Superior Court.
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     testified that the object fell from the waistband of [Appellant’s]
     pants down his leg and he was able to identify the object as a .9
     millimeter gun. By this point, Jermaine Goss had left the
     immediate area and was at his house located at 1510 West
     Hazard Street. The gathered crowd broke up soon thereafter.

     On the following day, August 22, 2004, [Appellant] approached
     Jermaine Goss, Keith Furman, and another man, “Danny”, who
     were sitting on the front steps of Furman’s house, located at
     2532 North 15th Street. [Appellant] told Furman that he was still
     angry over the fight that took place the night before and that he
     should have shot Furman the night before. Furman laughed in
     response. “Danny” left and [Appellant] left.

     [Appellant] entered his home, 2528 Hazard Street and on
     reemerging from his house he told Goss that he was going to die
     because he owed [Appellant] money. [Appellant] told Furman
     that he was also going to die because he would be a witness to
     Goss’s murder. After saying this to the two men, [Appellant]
     once again went into his house only to come out, carrying a
     telephone. [Appellant] placed a call and once again approached
     the two men sitting on the steps. As [Appellant] approached the
     two men, two other men approached Goss and Furman as well.
     One of the two men asked [Appellant] if these were the “boys”
     giving [Appellant] trouble. [Appellant] responded that yes, these
     were the boys giving him trouble.

     Upon hearing [Appellant’s] answer, one of the two unidentified
     men pulled a gun from his waistband. [Appellant] also pulled a
     .9 millimeter gun from the waistband of his pants. Seeing this,
     Furman got up and ran north on 15th Street towards Lehigh
     Street. As Furman reached Oakdale Street, he heard ten (10)
     gunshots. Furman continued running until he got to the
     intersection of 30th Street and Lehigh Street, because that was
     the area where he believed Jermaine Goss’s birth father lived.
     Furman was able to find out where Goss’s father, Allen Goss,
     lived from a woman on the street. Furman found Allen Goss and
     told him that he and his son were approached by “Wop Wop”
     and two other armed men outside of Furman’s house, that he
     ran and that he had heard gun shots.

     Police Officer Danielle White arrived at 2530 Hazard Street
     where she found Goss, gasping for air, lying in a puddle of blood.
     Goss was transported to Temple University Hospital where he

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      died. On August 23, 2004, the day after the murder, Philadelphia
      Police picked up Furman for questioning. Furman made a
      statement to police and agreed to have it videotaped.
      [Appellant] was then arrested the same day.

Commonwealth v. Bowen, 918 A.2d 782, 2956 EDA 2005 at *2-3

(Pa.Super. 2006). Appellant did not file for further review with our Supreme

Court. Therefore, his judgment of sentence became final thirty days after

our decision, i.e., January 12, 2007.

      Appellant filed a timely PCRA petition, and appointed counsel filed a no

merit letter and received permission to withdraw. The petition was denied

on October 2, 2008, and Appellant thereafter filed a pro se notice of appeal

from the order, which was docketed at 2957 EDA 2008.               We ultimately

dismissed that appeal on April 7, 2010, for the failure to file a brief.

      On March 7, 2011, Appellant filed the PCRA petition at issue herein,

seeking reinstatement of his right to appeal the October 2, 2008 dismissal of

his first PCRA petition.   The petition lingered, prompting Appellant to file

supplemental petitions in 2012 and 2015. The PCRA court issued a notice of

intent to dismiss on May 27, 2016.        Following Appellant’s objections, the

PCRA court thereafter dismissed the petition on September 23, 2016.

Appellant filed a timely notice of appeal. Appellant complied with the order

to file a Pa.R.A.P. 1925(b) statement, and the PCRA court issued its

responsive opinion. The matter is now ready for review of the claims raised

by Appellant:

      I. Whether Appellant's incompetence qualifies under the
      statutory [newly]-discovered fact exception, on the basis that his
      incompetence rendered Appellant unable to timely discover the

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      factual basis for his post conviction claims on appeal, following
      the dismissal of his initial post conviction collateral relief act
      under the purview of 42 Pa.C.C. §9545(b)(1)(ii)?

      II. Whether Appellant is entitled to the reinstatement of his PCRA
      appellate rights as a result of Attorney Lammendola's
      abandonment of Appellant during his initial post conviction
      collateral relief act proceeding?

      III. Whether Appellant's mental incompetence raises material
      issues of fact requiring a hearing pursuant to Pa.R.Crim.P.
      908(a)(2)?

Appellant’s brief at 2.

      Generally, a petition for relief under the PCRA must be filed within one

year of the date the judgment of sentence became final. Where, as here,

the petition is facially untimely, the PCRA petitioner is required to allege and

prove an exception to the one-year time bar. These exceptions are:

      (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). Additionally, any petition seeking to invoke

one of these three exceptions “shall be filed within 60 days of the date the

claim could have been presented.”      42 Pa.C.S. § 9545(b)(2).      “This time


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constraint is jurisdictional in nature, and is not subject to tolling or other

equitable considerations.”       Commonwealth v. Spotz, 171 A.3d 675, 678

(Pa. 2017) (citation omitted).

       Presently, Appellant relies on the § 9545(b)(1)(ii) exception.      He

alleges that the pertinent newly-discovered fact is that he was mentally

incapacitated during the time frame in which his brief was due. In support,

Appellant relies upon the mental health evaluation which was prepared in

advance of sentencing. The report states, in pertinent part:

       Psychological testing does find a number of disturbed thought
       processes, typical of individuals who are quite emotionally
       disturbed. He seems to have a very poor fund of common
       information and intellectually, he appears to be functioning in
       the mild range of mental retardation. He tells me that he cannot
       handle money, nor can he go about the city on his own.
       Clinically, he appears to have an IQ of about 67.

Mental Health Evaluation, 7/29/05 at 2-3.1

       In Commonwealth v. Cruz, 852 A.2d 287 (Pa. 2004), our Supreme

Court stated that, in some circumstances, mental incapacity could satisfy the

newly-discovered fact exception:

       The essence of appellant's claim is that his alleged mental
       incapacity rendered the facts upon which his substantive PCRA
       claims would be based unknowable to him until the point at
       which he became competent, and thus qualifies him for review
       under the PCRA's after-discovered evidence exception to the
       PCRA time-bar. Appellant also claims that he should be
       permitted to attempt to prove that he filed his pro se PCRA
____________________________________________


1This document was attached to the PCRA pleadings and the Commonwealth
does not dispute its veracity.



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      petition within sixty (60) days of the point where he became
      competent. Although the lower courts are correct that there is no
      express exception for mental incapacity found in Section
      9545(b)(1), we are satisfied that, in some circumstances, claims
      that were defaulted due to the PCRA petitioner's mental
      incompetence may qualify under the statutory after-discovered
      evidence exception.

Id. at 335–36. Subsequent case law has described Cruz as follows:

      Only under a very limited circumstance has the Supreme Court
      ever allowed a form of mental illness or incompetence to excuse
      an otherwise untimely PCRA petition. Thus, the general rule
      remains that mental illness or psychological condition, absent
      more, will not serve as an exception to the PCRA's jurisdictional
      time requirements.

Commonwealth v. Monaco, 996 A.2d 1076, 1080–81 (Pa.Super. 2010)

(citations omitted).   Additionally, in Commonwealth v. Liebensperger,

904 A.2d 40, 47 (Pa.Super. 2006), we described Cruz as involving highly

unusual facts:

      The unique facts of Cruz allow us to distinguish it from the
      instant   case.     In Cruz, the     appellant    was  essentially
      “lobotomized” as a result of a self-inflicted gunshot wound, and
      could not discuss the facts of his case. In our case, Appellant
      suffered no similar physical injury to his brain.

Id. at 47.

      Presently, we find that the materials relied upon by Appellant do not fit

the Cruz standard as he likewise has failed to establish any type of similar

physical injury that would prevent him from knowing the nature of his

claims. Indeed, the facts contained in the July 2005 report do not establish

any type of mental incompetence. Thus, assuming arguendo that Appellant

could not recover the mental health report in the exercise of due diligence

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prior to 2011, the report fails to establish that Appellant’s situation is

comparable in any way to Cruz.

       The essence of Cruz was that the petitioner could not participate

meaningfully in his own proceedings during the relevant timeframes. Here,

however, Appellant’s documents establish only that his IQ is low, which does

not satisfy the exception. Liebensperger, supra at 47 (“In his diagnostic

impression, Dr. Rotenberg noted that Appellant suffered from            . . . Mild

Mental Retardation.”). Furthermore, Appellant’s own brief indicates that his

mental capacities posed difficulties only in the sense that he required help

from other inmates in preparing his documents, and he states that he has

“the   functioning   mental   state   of   a   mentally   retarded   individual[.]”

Appellant’s brief at 7. That circumstance, however, does not establish that

Appellant did not know the nature of his claims, as he avers in his brief. It

means only that he had difficulties preparing his brief.

       In this respect, accepting arguendo that Appellant’s low IQ prevented

his meaningful participation and excuses his failure to file a brief, it follows

that he was forever unable to participate from the case’s inception. Absent

Appellant somehow improving his IQ in the intervening years, it would

therefore seem that Appellant’s mental capacities would still hinder his

preparation.

       Finally, Appellant fails to explain how he has now sufficiently recovered

from his purported inability to meaningfully participate.      Indeed, Appellant


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does not state that his condition has somehow improved since the 2005

report. As we explained in Liebensperger:

      Comparatively, Appellant in the instant case has offered nothing
      to indicate when, if ever, the crucial point in time at which he
      passed from incompetence to competence may have actually
      occurred, discussing only his chronic mental illness. Appellant
      has failed to offer any evidence or suggested reasons as to the
      cause of his lapse into incompetence after Dr. Rotenberg's
      evaluation. Similarly, Appellant has not asserted in his petition
      even an estimate of the timing or duration of the periods of
      incompetence he allegedly suffered after his evaluation. Further,
      Appellant has made no assertions, and there is nothing in the
      record to indicate, that his condition is of the type that may have
      recently improved or changed so that he has only recently
      returned to the degree of competence required to file a PCRA
      petition.

Liebensperger, supra at 48.

      The same is true herein. There is nothing in the record to indicate that

his condition was of the type that (1) actually prevented his meaningful

participation back in 2010 when his failure to file a brief resulted in the

dismissal of his appeal, and (2) that the purported condition excusing his

failure to file a brief has improved to a degree that he is now competent to

do so where he formerly was not.       Therefore, we conclude that Appellant

failed to establish the applicability of the exception, and we therefore affirm.

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/21/18




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