J-S07030-16


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

STEPHEN CHRISTOPHER BOWEN, III

                            Appellant                  No. 514 MDA 2015


                Appeal from the PCRA Order February 18, 2015
                 In the Court of Common Pleas of York County
              Criminal Division at No(s): CP-67-CR-0002096-2010


BEFORE: BOWES, J., OTT, J., and FITZGERALD, J.*

MEMORANDUM BY OTT, J.:                                  FILED JUNE 01, 2016

        Stephen Christopher Bowen, III, appeals from the order entered in the

York County Court of Common Pleas, dated February 18, 2015, dismissing

his first petition filed under the Post-Conviction Relief Act (“PCRA”).”1

Bowen seeks relief from the judgment of sentence imposed on June 1, 2011,

following his convictions of fleeing or attempting to elude police, driving

under the influence (DUI) (general impairment, second offense), reckless

driving, careless driving, disregarding traffic lane, driving without a license,

DUI (controlled substance – Schedule II or III, second offense), DUI

(controlled substance – impaired ability, second offense), DUI (controlled
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
1
    42 Pa.C.S. §§ 9541-9546.
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substance – combination alcohol and drugs, second offense), DUI (controlled

substance     –   metabolite,     second       offense),   intentionally   possessing   a

controlled substance by a person not registered, and possession of drug

paraphernalia.2 On appeal, Bowen raises a plethora of ineffective assistance

of counsel claims. Based on the following, we affirm.

       On direct appeal, the trial court thoroughly recounted the factual

history of this case in its opinion dated December 12, 2011, which we need

not recite here. See Trial Court Opinion, 12/12/2011, at 1-7. Briefly, we

note Bowen’s convictions stem from a road rage incident, which involved

him tailgating and harassing another driver, as well as a high-speed pursuit

and apprehension by officers, which included him crossing state lines and

assaulting the responding officers. Bowen was under the influence of drugs

and alcohol at the time of the incident.            A jury trial was held on April 4,

2011, and April 5, 2011, for the fleeing or attempting to elude police charge,

a third-degree felony, as well as aggravated assault and resisting arrest.

The jury found Bowen guilty of the fleeing or attempting to elude police

crime and not guilty of aggravated assault and resisting arrest. On April 5,

2011, during the trial but prior to jury deliberations, Bowen also pled guilty

to the multiple DUI charges, possession of a controlled substance,

____________________________________________


2
  75 Pa.C.S. §§ 3733(a), 3802(a)(1), 3736(a), 3714(a), 3309(1), 1501(a),
3802(D)(1)(ii), 3802(D)(2), 3802(D)(3), 3802(D)(1)(iii), and 35 P.S. § 780-
113(a)(16) and (a)(32), respectively.



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possession of drug paraphernalia, and summary offenses. On June 1, 2011,

the court sentenced Bowen to an aggregate term of six and one-half to 15

years’ incarceration for all of the convictions.   Bowen filed post-sentence

motions, which were denied on September 19, 2011.            His judgment of

sentence was affirmed by a panel of this Court on November 1, 2012,3 and

the Pennsylvania Supreme Court denied his petition for allowance of appeal

on April 9, 2013. See Commonwealth v. Bowen, 55 A.3d 1254, 1256 (Pa.

Super. 2012), appeal denied, 64 A.3d 630 (Pa. 2013).

       On July 7, 2014, Bowen filed the present, counseled 4 PCRA petition.5

Two days later, the PCRA court denied his petition as untimely filed. Bowen

____________________________________________


3
   On direct appeal, Bowen raised sufficiency, weight, discretionary aspects
of sentencing, and legality of sentence claims.
4
   Bowen’s PCRA counsel is different from his pre-trial, trial, and direct
appeal counsel. It is unclear from the record when PCRA counsel was
appointed or retained as there is no entry of appearance on the docket.
5
    In his petition, Bowen raised nine issues: (1) pre-trial counsel was
ineffective for failing to raise issues related to what initiated the pursuit,
which was detrimental at the suppression hearing; (2) pre-trial counsel was
ineffective for failing to raise a suppression issue in a pre-trial motion,
resulting in the denial of the motion without an evidentiary hearing or
argument; (3) trial counsel failed to notify Bowen of the increased penalties
associated with the felony fleeing or attempting to elude police charge; (4)
Bowen was deprived of a fair trial because he was not informed that the trial
court would increase the potential sentence for fleeing or attempting to
elude police at the time he entered the guilty plea for DUI; (5) trial counsel
was ineffective for failing to inform Bowen that pleading guilty to four counts
of DUI prior to trial would remove the second element of the fleeing or
attempting to elude police charge from the scope of the jury; (6) Bowen’s
rights were infringed when multiple guilty pleas were accepted absent an on-
(Footnote Continued Next Page)


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then filed a motion for reconsideration of the court’s July 9, 2014, order. A

hearing was held on August 20, 2014. At the conclusion of the hearing, the

court vacated its original order, acknowledging it had miscalculated the time

period for filing a petition.       The matter proceeded to a PCRA evidentiary

hearing on December 1, 2014.               On February 17, 2015, the PCRA court

entered an order, denying Bowen’s petition. Specifically, the court opined:

      We find the issues complained of with respect to the omnibus
      pretrial motion to suppress lack arguable merit, and that counsel
      was not ineffective for failing to raise the meritless issues. We
      further find [Bowen] suffered no prejudice as a result of pleading
      guilty to the DUI charge, as the record shows [Bowen] admitted
      to the elements of the DUI charge while testifying at trial.
      Further, we find the record is sufficient to sustain a felony fleeing
      and alluding [sic] conviction regardless of [Bowen’s] guilty plea
      as to the DUI, as [Bowen] was driving dangerously at high
      speeds and crossed state lines during the pursuit. Thus, the
      issues raised by [Bowen] would not have changed the outcome
      of his case.

Order, 2/18/2015. This timely appeal followed.6


                       _______________________
(Footnote Continued)

the-record inquiry to determine whether he voluntarily and knowingly
entered those pleas; (7) trial counsel was ineffective for failing to raise the
suppression issue at trial as the court had instructed him to do; (8) trial
counsel was ineffective for failing to file a motion for judgment of acquittal
after the close of the Commonwealth’s case-in-chief pursuant to
Pa.R.Crim.P. 720 on the basis that the police did not have sufficient probable
cause to pursue him across state lines; and (9) appellate counsel was
ineffective for failing to raise the above-stated issues during post-sentence
motions or on direct appeal. See Bowen’s Motion for Post Conviction
Collateral Relief, 7/7/2014, at 3-5.
6
   On March 23, 2015, the PCRA court ordered Bowen to file a concise
statement of errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
(Footnote Continued Next Page)


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      Bowen has identified the following six issues of contention in his

appellate brief:

      1. Did the Trial Court commit an error of law by finding no
         infringement of [Bowen]’s rights although multiple guilty
         pleas were accepted absent an on the record colloquy as
         required by Pa.R.Crim.P. 590 and case law interpreting the
         same.

      2. Did the Trial Court err in failing to address the issue of
         compliance with Pa.R.Crim.P. 590 in the Order denying the
         PCRA Petition?

      3. Did the Trial Court err in finding that pre-trial counsel’s
         omnibus motion lacked arguable merit and trial counsel was
         not ineffective for failing to raise the issue at trial when trial
         counsel admitted he did not research the issue and no case
         law demonstrating lack of merit was cited?

      4. Did the Trial Court err in denying the PCRA Petition without
         properly addressing trial counsel’s ineffectiveness raised by
         [Bowen] in that trial counsel:

          a. failed to notify [Bowen] that entering a plea of guilty prior
             to [the] verdict would remove the second prong of a
             Fleeing or Attempting to Elude charge from the scope of
             the jury;

          b. failed to inform [Bowen] that the potential sentences for
             the Fleeing or Attempting to Elude Police charge would
             increase at the time [Bowen] entered a guilty plea to the
             DUI, as a result of said plea;

          c. failed to notify [Bowen] of the increased penalties
             associated with Third Degree Felony Fleeing or Attempting
             to Elude Police as opposed to the Second Degree
             Misdemeanor variety?

                       _______________________
(Footnote Continued)

Bowen complied on April 13, 2015. The PCRA court issued an opinion
pursuant to Pa.R.A.P. 1925(a) on September 1, 2015.



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      5. Did the Trial Court err in denying the PCRA Petition without
         properly addressing pre-trial counsel’s ineffectiveness for not
         including all relevant facts in the pre-trial motion to suppress,
         resulting in a dismissal of said motion prior to an evidentiary
         hearing or meaningful argument on the issue?

      6. Did the Trial Court err in denying the PCRA petition without
         addressing the issue that [Bowen] raised at his PCRA hearing
         concerning the grading of the Fleeing and Attempting to Elude
         charge, namely that he was unaware it was charged as a
         felony[?]

Bowen’s Brief at 4-5.

      Our standard and scope of review for the denial of a PCRA petition is

well-settled:

      [A]n appellate court reviews the PCRA court’s findings of fact to
      determine whether they are supported by the record, and
      reviews its conclusions of law to determine whether they are free
      from legal error. 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. Charleston, 94 A.3d 1012, 1018-1019 (Pa. Super.

2014) (citation omitted), appeal denied, 104 A.3d 523 (Pa. 2014).

      To be eligible for PCRA relief, [the a]ppellant must prove by a
      preponderance of the evidence that his conviction or sentence
      resulted from one or more of the enumerated circumstances
      found at 42 Pa.C.S. § 9543(a)(2) (listing, inter alia, the
      ineffective assistance of counsel and the unavailability at the
      time of trial of exculpatory evidence, which would have changed
      the outcome of the trial had it been introduced).

Commonwealth v. Koehler, 36 A.3d 121, 131-132 (Pa. 2012).

      The petitioner must “plead and prove, inter alia, that the allegation of

error has not been previously litigated or waived. An issue is waived if it

could have been raised prior to the filing of the PCRA petition, but was not.”

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Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa. Super. 2007)

(citations omitted), appeal denied, 940 A.2d 365 (Pa. 2007).7 See also 42

Pa.C.S. § 9544(b).

         Here, Bowen’s first issue, which attacks the validity of his guilty plea

as unknowing and involuntary, is waived for failure to raise this issue on

direct appeal. See id.

         With respect to Bowen’s second claim, that the PCRA court erred in

failing to address the issue of compliance with Pa.R.Crim.P. 590 in its

February 17, 2015, order, we need not address this issue because Bowen

acknowledges the court discussed the argument in its Rule 1925(a) opinion,

and “this issue is now moot.” Bowen’s Brief at 10. Moreover, with respect

to Bowen’s sixth claim, he does not address it in the argument section of his

brief.    Therefore, we conclude he has abandoned the claim for appellate

review and need not address it further.

         Next, in Bowen’s third issue, he argues trial counsel was ineffective for

failing to raise certain suppression issues at trial.      Bowen’s Brief at 10.

Bowen notes the suppression motion, which raised five issues, including

whether the police had reasonable suspicion to initiate the traffic stop and

whether the police met the requirements of Maryland law regarding a fresh

____________________________________________


7
   In Turetsky, supra, a panel of this Court determined the appellant
waived the issue of the validity of his guilty pleas on PCRA appeal because
he could have raised the issue on direct appeal, but did not do so. Id.



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pursuit chase, was not disposed of in preliminary proceedings but the issues

were reserved for counsel to re-raise at trial, and counsel failed to do so.

Id. at 10. He points to the fact that pre-trial counsel testified at the PCRA

hearing that the issue of whether reasonable suspicion existed at the time of

the stop had merit. Id. at 10-11. Bowen asserts: “Due to trial counsel’s

failure to raise these issues, [Bowen] was precluded from ever testing the

[c]onstitutionality of his traffic stop or the subsequent chase across state

line.”    Id. at 13.   Moreover, he states there was no strategic reason for

failing to raise this issue at trial and the failure to do so caused him harm

because raising the issue “could have resulted in an [o]rder suppress[ing] a

large amount of evidence.” Id.

         With respect to a claim of ineffective assistance of counsel, we are

guided by the following:

         It is well-settled that counsel is presumed effective, and to rebut
         that presumption, the PCRA petitioner must demonstrate that
         counsel’s performance was deficient and that such deficiency
         prejudiced him. Strickland v. Washington, 466 U.S. 668,
         687-91, 104 S. Ct. 2052, 80 L. Ed. 2d 674, (1984). This Court
         has described the Strickland standard as tripartite by dividing
         the performance element into two distinct components.
         Commonwealth v. Pierce, 515 Pa. 153, 527 A.2d 973, 975
         (Pa. 1987). Accordingly, to prove trial counsel ineffective, the
         petitioner must demonstrate that: (1) the underlying legal issue
         has arguable merit; (2) counsel’s actions lacked an objective
         reasonable basis; and (3) the petitioner was prejudiced by
         counsel’s act or omission. Id. A claim of ineffectiveness will be
         denied if the petitioner’s evidence fails to satisfy any one of
         these prongs.

         Regarding the reasonable basis prong of the ineffectiveness test,
         we will conclude that counsel’s chosen strategy lacked a

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     reasonable basis only if the petitioner proves that the alternative
     strategy not selected offered a potential for success substantially
     greater than the course actually pursued. Commonwealth v.
     Koehler, 614 Pa. 159, 36 A.3d 121, 132 (Pa. 2012). To
     establish the prejudice prong, the petitioner must demonstrate
     that there is a reasonable probability that the outcome of the
     proceedings would have been different but for counsel’s
     ineffectiveness. Id.

Commonwealth v. Elliott, 80 A.3d 415, 427 (Pa. 2013), cert. denied, 135

S.Ct. 50 (U.S. 2014).   “[B]oilerplate allegations and bald assertions of no

reasonable basis and/or ensuing prejudice cannot satisfy a petitioner’s

burden to prove that counsel was ineffective.” Commonwealth v. Paddy,

15 A.3d 431, 443 (Pa. 2011).

     Here, the PCRA court noted the following:

     At the PCRA hearing, [trial counsel] testified that he was aware
     that previous counsel was instructed by the court to re-raise
     previously unresolved or not litigated issues at trial. However,
     he elected not to raise the issues at trial because he found them
     to be meritless and wasteful of the court’s time and preferred to
     focus on a jury nullification approach that posed a greater
     chance of success for [Bowen]. [Trial counsel] discussed the
     issues with [Bowen] and seeing [Bowen]’s face on the video and
     the high speeds of the chase led him to believe they would be
     meritless.

PCRA Court Opinion, 9/1/2015, at 7 (record citations omitted).

     We conclude Bowen’s claim fails for several reasons.        First, we find

Bowen fails to explain, other than restating the law, how the officers in his

case lacked reasonable suspicion or were violating Maryland law during the

fresh pursuit and, therefore, were not authorized to conduct an extra-




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jurisdictional traffic stop.8        Consequently, other than presenting bald

assertions, Bowen has not met his burden in demonstrating the underlying

legal issue has arguable merit.                Furthermore, again, Bowen presents

boilerplate allegations with respect to the remaining prongs of the

ineffectiveness test, particularly counsel’s trial strategy.         Trial counsel

provided a reasonable basis for his actions at the PCRA hearing, which the

court accepted. Bowen does not explain how the court’s ruling constituted

an abuse of discretion.       Accordingly, we conclude Bowen’s third argument

fails and trial counsel cannot be deemed ineffective for failing to raise certain

suppression issues at trial.

       In Bowen’s fourth claim, he alleges trial counsel was ineffective for

failing to inform him of the various grading penalties regarding the crime of

fleeing or attempting to elude police, for failing to inform him that the

potential sentences for fleeing or attempting to elude police would increase

because he pled guilty to DUI, and for failing to inform him that pleading

guilty to DUI would remove the second element of the fleeing or attempting

to elude police crime. Bowen’s Brief at 13-17.

       By way of background, Bowen’s fleeing or attempting to elude police

was graded as a third-degree felony, which is set forth as follows:


____________________________________________


8
   Bowen does not address the remaining three suppression issues in his
brief.



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      (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.

75 Pa.C.S. § 3733(a.2)(2). On the second day of trial, Bowen pled guilty to

multiple DUI offenses, which were then applied to the first element of the

grading and the jury only had to determine the remaining two elements.

      Bowen states the failure to inform a defendant of the maximum

possible    sentences     is   not   generally      reversible   error   in   light   of

Commonwealth v. O’Neil, 304 A.2d 108 (Pa. 1973), but asserts “that had

he been informed of the increased penalties associated with the felony

fleeing charge as a result of pleading guilty to DUI, he would not have

entered the plea.” Bowen’s Brief at 14. Moreover, Bowen complains he “did

not have any discussions with his counsel on how pleading to the DUI would

affect the Fleeing or Attempting to Elude, i.e. raise the grading from an [sic]

[second-degree misdemeanor] to [a third-degree felony] automatically.” Id.

at 15. Lastly, he argues that because he had a limited colloquy, he “was not

advised that the second prong of the fleeing or attempting to elude law

enforcement would not be before the scope of the jury.” Id. at 17. Bowen

contends that consequently, his underlying claim had arguable merit, there

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was no strategic reason other than mere oversight, and he was prejudiced

by the plea because he received a felony sentence. Id. at 15.

      Here, the PCRA court found the following:

            [Bowen] was always charged with felony fleeing and
      eluding police from the inception of the case and his pleas to the
      DUI charges did not alter his charges. [Bowen] testified that he
      was shown a sentencing guide sheet by [trial counsel] and that
      the sentencing guide sheet was similar to the one shown at the
      PCRA hearing by [the prosecutor]. [Bowen] admitted that he did
      not pay attention to the crime’s gradation when shown the sheet
      but was now able to identify that the sentencing guide lists the
      crime as an F-3 grade. [Bowen] was under the faulty impression
      that he was charged with a misdemeanor.

             Even assuming [trial counsel] failed to inform [Bowen] that
      pleading to the DUI charges would be admitting to one of the
      elements of felony fleeing and eluding, other evidence existed at
      trial to prove the felony fleeing and eluding charge. [Bowen]
      admitted that he did cross state lines from Pennsylvania to
      Maryland and that the evidence at trial indicated he was driving
      between seventy to one hundred miles per hour. His pleas to
      the DUI charges would not have changed the outcome of his trial
      when the felony fleeing and eluding charge could be proven by
      other facts such as crossing state lines and driving at dangerous
      speeds that would satisfy the second prong of the charge.

PCRA Court Opinion, 9/1/2015, at 9 (record citations omitted).

      With the principles of ineffective assistance of counsel in mind, we

agree with the PCRA court’s well-reasoned conclusion. Bowen has not met

the third prong of the ineffectiveness test, prejudice, because there was

other undisputed evidence presented at trial that was sufficient to justify

grading the offense as a third-degree felony. Accordingly, we conclude trial

counsel was not ineffective for failing to inform him of the various grading

penalties regarding the crime of fleeing or attempting to elude police.

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      In Bowen’s final argument, he contends pre-trial counsel was

ineffective for failing to litigate his suppression motion. Bowen’s Brief at 18.

He states counsel’s failure to “include any relevant facts in the motion”

lacked any reasonable basis, no explanation was offered by pre-trial counsel,

and this caused him prejudice because the motion was never litigated. Id.

      We again find Bowen’s argument amounts to bald assertions, which do

not satisfy his burden of proving counsel was ineffective. See Paddy, 15

A.3d at. Moreover, as the PCRA court points out:

             [Pre-trial counsel] was counsel of record through the
      preliminary hearing and through an omnibus pre-trial motion
      before [Bowen] hired [trial counsel]. [Pre-trial counsel] raised
      five issues in this motion to suppress including probable cause to
      initiate the traffic stop, the legal basis for pursuing [Bowen]
      outside of Pennsylvania, statements made to EMT workers,
      failure to consent to the blood draw and a denial by [Bowen] of
      aggressive actions toward the police officers. [Pre-trial counsel]
      had not received discovery from the Commonwealth prior to
      filing the suppression motion, however, out of caution he
      included consent to search the vehicle as one of the issues
      raised.    All five issues were litigated prior to [trial
      counsel’s] taking over the case and there was preliminary
      resolution on the issues. It is unclear to this Court what other
      facts [Bowen] alleges could have been included prior to the
      dismissal of the motion to suppress but the five issues raised in
      the suppression motion were adequately explored prior to [trial
      counsel’s] involvement. [Trial counsel] testified that he was
      aware he could re-litigate the issues but the issues had no merit
      and he did not feel that looking into two potential witnesses had
      merits after reviewing the reports. Counsel is not deemed
      ineffective for failing to raise meritless issues.

PCRA Court Opinion, 9/1/2015, at 9-10 (record citations omitted) (emphasis

added).   The record supports the court’s determination.        Therefore, we




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conclude Bowen’s final claim is wholly without merit and pre-trial counsel

was not ineffective.

      Accordingly, we discern no error on the part of the PCRA court in

dismissing Bowen’s petition and affirm its February 18, 2015, order.

      Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 6/1/2016




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