J-S23022-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA,                   IN THE SUPERIOR COURT OF
                                                      PENNSYLVANIA
                            Appellee

                       v.

JOMAR HOLDEN,

                            Appellant                No. 1373 EDA 2014


                  Appeal from the Order Entered April 10, 2014
              In the Court of Common Pleas of Philadelphia County
              Criminal Division at No(s): CP-51-CR-1208541-2005


BEFORE: DONOHUE, SHOGAN, and STRASSBURGER,* JJ.

MEMORANDUM BY SHOGAN, J.:                               FILED MAY 20, 2015

       Appellant, Jomar Holden, appeals pro se from the April 10, 2014 order

denying his first petition filed pursuant to the Post Conviction Relief Act

(“PCRA”), 42 Pa.C.S. §§ 9541–9546. After careful review, we affirm.

       We previously summarized the facts of the underlying crime as

follows:

             Police found the victim [Jules Bartlett] suffering from
       numerous gunshot wounds at 3:40 a.m. on June 26, 2005. The
       victim was able to tell police that he was shot inside the home of
       Vita Dubose (“Dubose”), who is the mother of two of Appellant’s
       children. Although Dubose initially told police that she and
       Appellant were asleep at Appellant’s house at the time of the
       shooting, she retracted that statement the next day and
       admitted that she and Appellant were present at the house.

____________________________________________


*
    Retired Senior Judge assigned to the Superior Court.
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                                    * * *

                 Appellant had initially lived with [Dubose] . . .
          but she testified that, at the time of the shooting,
          Appellant no longer lived with her and did not have a
          key to her house. Appellant alternated between her
          house and his mother’s house at 8th and Jefferson
          Streets. On at least two occasions prior to the night
          of the shooting, Appellant had entered her house by
          taking out the second floor air conditioner and
          climbing in through the window. On the evening of
          June 25, 2005, Dubose went to her cousin Keisha’s
          house in the Wynnefield section of the city to attend
          a birthday celebration for her uncle. Her brother and
          [Bartlett,] the victim, who she had met about a year
          and a half earlier through her brother, were in
          attendance also. This was the first time she had
          seen the victim since they met initially. Appellant
          was not at the celebration. Later in the evening,
          Dubose, her brother and several others left the
          birthday celebration to go to her girlfriend’s house at
          59th and Master Street to a cookout. Dubose rode
          to the cookout in the victim’s vehicle because her
          brother’s car was full, and she had left her car at her
          mother’s house. Between 10:30 PM and 1:30 AM,
          Appellant called Dubose on her cell phone
          approximately 5-6 times, purportedly to ask about
          the children who were spending time in Harrisburg
          with a relative. After the party, the victim drove
          [Dubose’s] cousin home first, then decided that
          Dubose was too intoxicated to drive and took her
          keys. The victim drove Dubose to her house . . . and
          opened the door for her with her key. The victim
          came in and they sat, in separate chairs, and
          watched television.

                 About 3:20 AM, while watching television, they
          heard a scraping noise upstairs that sounded like the
          air conditioner was being moved from the front
          bedroom window. The victim got up from the sofa
          and went up the stairs to investigate.        Dubose
          testified that, when he went up the stairs, he did not
          have a gun in his hand and she had no guns in her
          house.     Seconds after he went upstairs, Dubose

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          heard 6-7 gunshots.       She then saw the victim
          stumble down the stairs and collapse in the dining
          room. The victim had blood on his shirt in the chest
          area. Appellant came down the stairs behind the
          victim with a black gun in his hand. Appellant put
          the gun in his pants pocket and told Dubose to come
          with him. Dubose did not observe any blood on
          Appellant. Appellant told Dubose that they had to go
          someplace far away. He put her in a black car and
          drove to her mother’s house where Dubose had left
          her car.    When they reached Dubose’s mother’s
          house, they got into Dubose’s car and drove to her
          sister’s house in Willingboro, New Jersey, arriving at
          approximately 5:30 AM. During the ride, Dubose
          asked Appellant why he did it[,] and Appellant told
          Dubose that he thought the guy had a gun. After
          about twenty minutes, Appellant said his sister had
          an asthma attack, and they left her sister’s house
          and drove back to Philadelphia to Appellant’s cousin’s
          house near 24th and Huntingdon Streets. They sat
          in Dubose’s car outside the house[,] and Appellant
          again told Dubose that he thought the victim had a
          gun, and that she could not say anything about the
          shooting because he would get into trouble. After
          about ninety minutes, Appellant got out and Dubose
          drove to her mother’s house, picked up her niece
          and drove back to 1143 Marlyn Road.

                When she arrived at her house, there was a
          police car out front and the police would not permit
          her to enter the house. While she was outside of her
          house, Appellant called her cell several times.
          Appellant told her not to say anything to the police,
          and to only tell them that she was not home when
          the shooting happened. . . .

Commonwealth v. Holden, 2288 EDA 2009, 26 A.3d 1192 (Pa. Super.

filed March 15, 2011) (unpublished memorandum at 1–3).

     The PCRA court explained the ensuing procedural history as follows:

           On May 08, 2007, following a bench trial, [A]ppellant was
     convicted of voluntary manslaughter-unreasonable belief,

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       possession of an instrument of crime (PIC), criminal mischief,
       and multiple violations of the Uniform Firearms Act, for the
       killing of Jules Bartlett (Bartlett).

                                           * * *

             Upon conviction, [A]ppellant was sentenced to an
       aggregate term of 20-40 years confinement. Post sentence
       motions were denied. On March 15, 2011, the Superior Court
       affirmed the judgment of sentence.[1] [A]ppellant’s petition for
       Allowance of Appeal to the Pennsylvania Supreme Court was
       denied on September 14, 2011.[2]            On May 6, 2012,[3]
       [A]ppellant timely filed a pro se PCRA petition claiming that he
       was entitled to relief because of violations 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 and
       multiple claims of ineffective assistance of counsel 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.             PCRA counsel was
                  [4]
       appointed,     and on January 2, 2014, filed a Finley letter
____________________________________________


1
      Commonwealth v. Holden, 2288 EDA 2009, 26 A.3d 1192 (Pa.
Super. filed March 15, 2011).        This Court rejected the propriety of
Appellant’s claim of self-defense in the context of the sufficiency of the
evidence and his contention that the sentence imposed was excessive.
2
     Commonwealth v. Holden, 29 A.3d 371 (Pa. filed September 14,
2011).
3
      The docket indicates that the original PCRA petition was lost, and
Appellant was required to resend the petition. The copy was received on
July 3, 2012, but the “filing date [was] adjusted to 5/6/12.” Docket Entry
No. 19, 5/6/12.
4
       PCRA counsel was appointed on August 31, 2012. The record lacks
explanation for the delay from the time of counsel’s appointment until the
filing of his brief pursuant to Commonwealth v. Turner, 544 A.2d 927 (Pa.
1988), and Commonwealth v. Finley, 550 A.2d 230 (Pa. Super. 1988) (en
banc).



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        indicating that he had reviewed the trial transcripts, the court file
        and dockets, all prior filings available, all letters and material
        sent to him by the petitioner, discovery provided by trial
        counsel, and trial counsel’s file, and determined that each of the
        issues raised in [A]ppellant’s pro se petition were meritless and
        that he could find no other meritorious issues to be raised in an
        amended petition. On March 7, 2014, following the Court’s
        independent review of [A]ppellant’s claims, the relevant case law
        and the record, and after determining that counsel’s Finley letter
        was adequate, the Court filed and served on [A]ppellant, a Rule
        907 Notice of Intent to Dismiss along with counsel’s Finley letter.
        On April 10, 2014, [A]ppellant’s petition for PCRA relief was
        formally dismissed and PCRA counsel was permitted to withdraw.
        This appeal followed.

PCRA Court Opinion, 8/21/14, at 1–3 (footnote omitted). The PCRA Court

did not direct Appellant to file a concise statement pursuant to Pa.R.A.P.

1925.

        Appellant raises a single issue for our review, as follows:

              Whether the PCRA Court erred as a matter of law and/or
        abused its discretion in denying and/or dismissing without a
        hearing Appellant’s claim that he was denied due process of law
        and a fair trial, as guaranteed by Article I, § 9 of the
        Pennsylvania Constitution and the Fourteenth Amendment to the
        United States Constitution, where the trial court failed to
        consider a lesser included offense of involuntary manslaughter,
        18 Pa.C.S. § 2504?

Appellant’s Brief at 4.

        When reviewing the propriety of an order granting or denying PCRA

relief, this Court is limited to determining whether the evidence of record

supports the conclusions of the PCRA court and whether the ruling is free of

legal error. Commonwealth v. Rykard, 55 A.3d 1177, 1183 (Pa. Super.

2012). We grant great deference to the PCRA court’s findings and will not


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disturb them unless they have no support in the certified record.

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

      To be eligible for post-conviction relief, Appellant must show “[t]hat

the allegation of error has not been previously litigated or waived.”           42

Pa.C.S. § 9543(a)(3).       Section 9544 of the PCRA defines “waived” as

follows: “[A]n issue is waived if the petitioner could have raised it but failed

to do so before trial, at trial, . . . on appeal or in a prior state postconviction

proceeding.” 42 Pa.C.S. § 9544; see also Commonwealth v. Collins, 957

A.2d 237, 246 (Pa. 2008) (same). Instantly, Appellant asserts that he was

denied due process of law because the trial court “failed to consider the

lesser included offense of Involuntary Manslaughter, which was an equally

supportable verdict based upon the evidence adduced at trial.”               PCRA

petition, 5/6/12, at 30; Appellant’s Brief at 10. Appellant has not raised the

issue in the context of ineffective assistance of counsel. As Appellant could

have raised this issue in his direct appeal to this Court but did not do so, it is

waived.    Commonwealth v. Lambert, 797 A.2d 232, 240 (Pa. 2001)

(PCRA petitioner’s issues that could have been raised on direct appeal but

were not, are waived under 42 Pa.C.S. § 9544(b)).

      Even if not waived, the issue lacks merit. The PCRA Court addressed

the issue, “notwithstanding that [the] claim [is] waived,” and stated as

follows:

            Furthermore, [A]ppellant’s complaint that his due process
      right was violated when the [c]ourt allegedly failed to consider

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        the lesser included offense of involuntary manslaughter is
        likewise meritless.         Appellant claims that involuntary
        manslaughter was “an equally supportable verdict based upon
        the evidence adduced at trial, and where two equally reasonable
        but mutually inconsistent inferences can be drawn from the
        same set of facts the court may not . . . relieve the
        Commonwealth of its burden to disprove self-defense beyond a
        reasonable doubt . . . [.]” As “proof” that the [c]ourt did not
        carefully consider all possible charges before reaching its
        decision, [A]ppellant states that while it took him “several hours”
        to review the jury instructions, the applicable statutes, and
        related case law, the [c]ourt reached a verdict in “only ten
        minutes.” However, [A]ppellant fails to appreciate that the
        [c]ourt has presided over numerous jury and nonjury criminal
        trials, including homicide trials and manslaughter trials, both
        voluntary and involuntary, since 1999, and is thoroughly familiar
        with the elements necessary to prove a defendant guilty beyond
        a reasonable doubt in cases such as [A]ppellant[’]s. The fact
        that the [c]ourt, an elected judge with years of experience on
        the bench, did not take as long as [A]ppellant would have liked
        to reach its verdict is not proof of any error on the part of the
        [c]ourt or any indication that the [c]ourt did not consider all
        charges.      Moreover, [A]ppellant is really challenging the
        sufficiency of the evidence that convicted him, a claim that was
        litigated on direct appeal and is unreviewable here.

PCRA Court Opinion, 8/21/14, at 4, 6 (footnotes omitted).

        Furthermore, where, as here, “a case is tried to the court rather than a

jury,   we   presume      that   the   court   applied   proper   legal   standards.”

Commonwealth v. Hunter, 554 A.2d 550, 558 (Pa. Super. 1989) (citing

Commonwealth v. Donofrio, 372 A.2d 859, 860 (Pa. Super. 1977) (“The

Judge is imbued with the knowledge of the law that he would have given in a

formal charge in a jury case.”)).          Thus, even if not waived, the issue

Appellant seeks to raise lacks merit.

        Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/20/2015




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