Com. v. Bowen, D. ( 2022 )

J-A08045-22
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DWIGHT DARNELL BOWEN :
:
Appellant : No. 609 WDA 2021
Appeal from the Judgment of Sentence Entered December 17, 2020
In the Court of Common Pleas of Indiana County Criminal Division at
No(s): CP-32-CR-0001119-2019
BEFORE: BENDER, P.J.E., LAZARUS, J., and McCAFFERY, J.
MEMORANDUM BY McCAFFERY, J.: FILED: APRIL 29, 2022
Dwight Darnell Bowen (Appellant) appeals, pro se,1 from the judgment
of sentence imposed in the Indiana County Court of Common Pleas, following
his jury conviction of one count of third-degree murder2 for the death of his
cellmate, Luis Santiago. On appeal, Appellant contends: (1) the trial court
had no subject matter jurisdiction to convict him of third-degree murder when
he was charged only with criminal homicide generally; (2) the evidence was
insufficient to prove the victim’s death was a homicide; and (3) the verdict
was against the weight of the evidence. For the reasons below, we affirm.
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1As we will discuss infra, the trial court granted Appellant’s request to proceed
pro se following his sentencing hearing.
2 18 Pa.C.S. § 2502(c).
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The facts underlying Appellant’s conviction are summarized by the trial
court as follows:
[Appellant’s] conviction [arose] from events that occurred
January 1, 2019, at State Correctional Institution (SCI) Pine Grove
in Indiana County. At that time, [Appellant] was incarcerated and
shared a cell with [Santiago]. When the corrections officer on
duty did count at approximately 9:15 P.M., both [Appellant] and
Santiago were present in the cell. Shortly after 10:00 P.M., a call
came from the cell and the victim was found on the floor. When
[Appellant] was asked what had happened to Santiago, he replied,
“he fell out”, and later stated that Santiago was standing at the
sink and fell and hit his head on the door. At the time Santiago
was discovered, [Appellant] was observed wiping his hands and
had blood under his fingernails. There was also blood on multiple
surfaces in the cell, a t-shirt folded in a long, narrow configuration,
and the window of the cell had been taped over with paper.
[Appellant] and Santiago had been observed arguing earlier about
the phone and commissary and reportedly had a dispute over
Santiago having the bottom bunk.
Trial Ct. Op. 4/20/21, at 1-2.
Appellant was charged with criminal homicide, 18 Pa.C.S. § 2501. He
was represented by various attorneys employed by the Indiana County Public
Defender’s Office. The case proceeded to a jury trial which commenced on
September 14, 2020. On September 18th, the jury returned a verdict of guilty
on the charge of third-degree murder.3 On December 17, 2020, the trial court
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3 The verdict sheet permitted the jury to convict Appellant of first-degree
murder, third-degree murder, voluntary manslaughter, or involuntary
manslaughter. See Verdict Sheet, 9/18/20. The jury found Appellant not
guilty of first-degree murder, and guilty of third-degree murder. It did not
return a verdict on the manslaughter charges.
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sentenced Appellant to a term of 20 to 40 years’ incarceration to be served
consecutively to two life sentences he was serving for an unrelated conviction.
Trial counsel filed a timely post-sentence motion, challenging the weight
and sufficiency of the evidence. The next day, December 24, 2020, Appellant
filed a pro se post-sentence motion, in which he asserted he was not properly
charged with third-degree murder.4 On February 5, 2021, Appellant filed a
motion seeking to represent himself pro se and requesting a Grazier5 hearing.
The trial court held a combined Grazier/post-sentence motion hearing on
March 25, 2021.
After conducting a thorough colloquy, the court granted Appellant’s
motion for self-representation and appointed trial counsel as stand-by
counsel. See N.T. Post-Sentence Motion H’rg, 3/25/21, at 3-17. The court
also agreed to consider the arguments raised in both the counseled and pro
se post-sentence motions. See id. at 15; Order, 3/30/21.
On April 20, 2021, the trial court entered an order and opinion denying
relief under both motions. This timely pro se appeal follows.6
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4Throughout the trial proceedings, Appellant repeatedly and consistently filed
pro se applications for relief while he was represented by counsel.
5See Commonwealth v. Grazier, 713 A.2d 81, 82 (Pa. 1998) (requiring “an
on-the-record determination . . . that [a defendant’s] waiver [of the right to
counsel] is a knowing, intelligent, and voluntary one”).
6On May 19, 2021, the trial court directed Appellant to file a Pa.R.A.P. 1925(b)
concise statement of errors complained of on appeal within 21 days. Standby
counsel filed a Rule 1925(b) statement on the 21st day, June 9, 2021.
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Appellant raises four claims on appeal:
1. Was the legislative intent in the language of the criminal
homicide statute meant to be used as a catch all for all degrees
of murder and manslaughter?
2. [Are] third[-]degree murder, manslaughter, and voluntary
manslaughter lesser included offenses of first[-]degree
murder?
3. Was the verdict sufficient to support a conviction of murder in
the third degree?
4. Was the verdict against the weight of the evidence?
Appellant’s Brief at ii.7
Appellant addresses his first two issues together as a challenge to the
trial court’s subject matter jurisdiction. See Appellant’s Brief at 1. He argues
that he was charged, generally, with criminal homicide pursuant to 18 Pa.C.S.
§ 2501,8 which, he avers “isn’t legally a punishable offense, because it
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Appellant also filed a pro se Rule 1925(b) statement, which was docketed on
June 11th. However, the envelope in which Appellant mailed his statement is
postmarked June 7, 2021. “Under the prisoner mailbox rule, we deem a pro
se document filed on the date it is placed in the hands of prison authorities for
mailing.” Commonwealth v. Crawford, 17 A.3d 1279, 1281 (Pa. Super.
2011). Thus, both Appellant’s counseled and pro se statements were timely
filed.
The trial court issued a Pa.R.A.P. 1925(a) opinion on July 12 2021,
adopting its April 10, 2021, opinion and order as dispositive of Appellant’s
claims. See Trial Ct. Op., 7/12/21. We note the Commonwealth did not
submit an appellee’s brief to this Court.
7 We have reordered Appellant’s claims for purposes of disposition.
8 Section 2501 provides:
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provides no provision for which one can actually be prescribed a specific
punishment.” Id. Appellant insists he was not “informed that he’d be charged
with murder 1 and 3 and manslaughter until the first date of trial.” Id. at 2.
He maintains this lack of notice constituted a due process violation and placed
“an undue burden [on him to] prepare a defense for each of the qualitative
differences among the various degrees of murder and manslaughter.” Id. at
1.
Our Supreme Court has stated:
[There are] two requirements for subject matter jurisdiction as it
relates to criminal defendants: the competency of the court to
hear the case, and the provision of formal notice to the defendant
of the crimes charged in compliance with the Sixth Amendment of
the United States Constitution and Article I, Section 9, of the
Pennsylvania Constitution.
Commonwealth v. Jones, 929 A.2d 205, 210 (Pa. 2007). Here, Appellant
appears to challenge the second requirement, as he argues it was unfair to
charge him with criminal homicide generally, and require him to defend
against first-degree murder, third-degree murder, and both voluntary and
involuntary manslaughter.
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(a) Offense defined. — A person is guilty of criminal
homicide if he intentionally, knowingly, recklessly or negligently
causes the death of another human being.
(b) Classification. — Criminal homicide shall be classified
as murder, voluntary manslaughter, or involuntary manslaughter.
18 Pa.C.S. § 2501(a)-(b).
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However, as the trial court cogently explains in its opinion, Appellant’s
argument was rejected by this Court in Commonwealth v. Chambers, 852
A.2d 1197 (Pa. Super. 2004):
In Chambers, the defendant argued that the information only
charged him with criminal homicide but did not specifically charge
him with second[-]degree murder or allege every element of that
offense. [Chambers, 852 A.2d] at 1198. “The purpose of an
information or an indictment is to provide the accused with
sufficient notice to prepare a defense, and to ensure that he will
not be tried twice for the same act.” [Id.] at 1199 [(citation
omitted).] “An information which alleges that the accused
[‘]unlawfully, intentionally, knowingly, recklessly or negligently[’]
caused another’s death, and which also charged robbery, is
adequate notification that he is charged with second[-]degree
murder.” [Id.] “An information need not specify a degree of
murder or the degrees of manslaughter in order to sustain the
verdict of second[-]degree murder.” Id.The Information filed on December 12, 2019, charged
[Appellant] with Criminal Homicide as follows:
On or about 01/01/2019. Intentionally, knowingly,
recklessly, or negligently caused the death of another
human being, to wit, [Appellant] did intentionally cause the
death of Luis Santiago.
The Court finds [Appellant’s] argument unmeritorious. The
Information was not required to specify the offense of third[-]
degree murder and provided [Appellant] with sufficient notice to
prepare a defense.
Trial Ct. Op., 4/20/21, at 3.
We agree that Chambers is controlling. Appellant was convicted of
third-degree murder, which is defined in the Crimes Code as “[a]ll other kinds
of murder[,]” not including first-degree or second-degree murder. 18 Pa.C.S.
§ 2502(c). The Pennsylvania Supreme Court has explained: “[T]hird degree
murder is not a homicide that the Commonwealth must prove was committed
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with malice and without a specific intent to kill[; i]nstead, it is a homicide
that the Commonwealth must prove was committed with malice, but one with
respect to which the Commonwealth need not prove, nor even address, the
presence or absence of a specific intent to kill.” Commonwealth v. Fisher,
80 A.3d 1186, 1191 (Pa. 2013) (citation omitted). Here, Appellant’s criminal
information put him on notice that the Commonwealth believed he caused the
death of the victim. This was sufficient to satisfy due process concerns. Thus,
Appellant’s first two claims lack merit.9
Next, Appellant challenges the sufficiency of the evidence supporting his
conviction. Our review of a sufficiency claim is guided by the following:
As a general matter, our standard of review . . . requires that we
evaluate the record in the light most favorable to the verdict
winner giving the prosecution the benefit of all reasonable
inferences to be drawn from the evidence. Evidence will be
deemed sufficient to support the verdict when it establishes each
material element of the crime charged and the commission thereof
by the accused, beyond a reasonable doubt. Nevertheless, the
Commonwealth need not establish guilt to a mathematical
certainty. Any doubt about the defendant’s guilt is to be resolved
by the fact finder unless the evidence is so weak and inconclusive
that, as a matter of law, no probability of fact can be drawn from
the combined circumstances.
The Commonwealth may sustain its burden by means of wholly
circumstantial evidence. Accordingly, [t]he fact that the evidence
establishing a defendant’s participation in a crime is circumstantial
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9 We note that Appellant also asserts the Commonwealth failed to present a
prima facie case for third-degree murder at the preliminary hearing.
Appellant’s Brief at 2. It is well-settled, however, that Appellant’s subsequent
conviction of third-degree murder “renders moot any allegation that the
Commonwealth failed to establish a prima facie case” at the earlier
proceeding. Commonwealth v. Lee, 662 A.2d 645, 650 (Pa. 1995).
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does not preclude a conviction where the evidence coupled with
the reasonable inferences drawn therefrom overcomes the
presumption of innocence. Significantly, we may not substitute
our judgment for that of the fact finder; thus, so long as the
evidence adduced, accepted in the light most favorable to the
Commonwealth, demonstrates the respective elements of a
defendant’s crimes beyond a reasonable doubt, the . . .
convictions will be upheld.
Commonwealth v. Windslowe, 158 A.3d 698, 708–09 (Pa. Super. 2017)
(citation omitted).
Appellant argues the evidence was insufficient to support his conviction
of third-degree murder because it did not establish how the victim died.
Appellant’s Brief at 2. He contends the Commonwealth theorized that the
cause of death was manual strangulation based solely on the fact that the
victim had hemorrhaging in his eyes, otherwise known as petechia. Id.However, Appellant emphasizes that the expert forensic pathologist who
performed the autopsy — Dr. Kevin Whaley — acknowledged hemorrhaging
can occur absent asphyxiation. See id. Further, Dr. Whaley testified that
although he believed the cause of death was asphyxia, he “didn’t know the
particular mechanism for the asphyxia due to the lack of marks and bruising
around [the victim’s] neck area.” Id. at 3. Appellant maintains that,
conversely, his expert forensic pathologist — Dr. Karl Williams — opined that
the autopsy report revealed manual strangulation did not occur due to the
absence of any markings on the “skin surface” or “internal structures” of the
victim’s neck. Id. Additionally, Appellant insists the crime scene was
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compromised by first responders “making it impossible for the CSI team to
properly read the crime scene.” Id. at 4.
As noted above, “[t]he elements of third-degree murder, as developed
by case law, are a killing done with legal malice.” Commonwealth v.
Marquez, 980 A.2d 145, 148 (Pa. Super. 2009) (en banc) (citation omitted).
Malice is defined as: wickedness of disposition, hardness of heart,
cruelty, recklessness of consequences, and a mind regardless of
social duty, although a particular person may not be intended to
be injured. Malice may be found where the defendant consciously
disregarded an unjustified and extremely high risk that his actions
might cause serious bodily injury. Malice may be inferred by
considering the totality of the circumstances.
Windslowe, 158 A.3d at 709 (citation omitted). “[T]o convict a defendant
for third[-]degree murder, the jury need not consider whether the defendant
had a specific intent to kill, nor make any finding with respect thereto.”
Fisher, 80 A.3d at 1191 (citation omitted).
In the present case, the trial court concluded Appellant’s challenge to
the sufficiency of the evidence was meritless. The court opined:
Experts submitted reports and testified for both the
Commonwealth and the defense at trial. The Commonwealth’s
expert, Dr. Kevin Whaley, M.D., opined that the cause of death
was venous obstruction, and noted the presence of petechial
hemorrhage, brain swelling, and pulmonary edema as indicative
of such an obstruction. Dr. Whaley also noted blunt force injuries
to the head and hands that were indicative of a physical
altercation.
The defense expert, Karl E. Williams, M.D., opined that while
the physical findings of the autopsy were consistent with an
asphyxial death, he did not believe that manual strangulation had
occurred. In his report, Dr. Williams noted the absence of external
markings or internal injuries that would accompany strangulation.
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With respect to the injuries Santiago did sustain, Dr. Williams
stated that none were significant enough to have contributed to
his death.
“It is beyond argument that the fact-finder is free to accept
or reject the credibility of both expert and lay witnesses, and to
believe all, part or none of the evidence.” A mere conflict in the
testimony of the witnesses does not render the evidence
insufficient because “it is within the province of the factfinder to
determine the weight to be given to the testimony and to believe
all, part, or none of the evidence.”
At trial, the jurors were also presented with evidence that
[Appellant] was alone in the cell with Santiago and there were
obvious signs of a struggle in the cell including blood, urine on the
floor around and under the body, and general disarray of the area.
A rolled up t-shirt with wrinkles was also recovered from the cell
that could have been used as a ligature. Santiago sustained
injuries to his hand, lip, and eye and also had abrasions on the
backs of his hands.
“Circumstantial evidence is sufficient to sustain a conviction
so long as the combination of evidence links the accused to the
crime beyond a reasonable doubt”. “Circumstantial evidence may
be sufficient to prove any element, or all of the elements of the
crime.”
Here, the jurors were free to believe all, part, or none of the
evidence presented and determine which expert they believed to
be most credible. The jurors could also consider circumstantial
evidence including the physical state of the cell and that
[Appellant] and Santiago were the only two people in the cell at
the time Santiago’s injuries were sustained. The jury could
properly conclude that [Appellant] killed Santiago, even if not
intentionally, by acting with a conscious disregard to an unjustified
and extremely high risk that his actions might cause death or
serious bodily harm.
Trial Ct. Op. 4/20/21, at 5-6 (citations omitted).
We agree with the trial court’s determination. Appellant bases his
argument on the conflicting testimony of the forensic pathologists — Dr.
Whaley for the Commonwealth and Dr. Williams for the defense. The problem
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is, however, the testimony was just that — conflicting. Thus, it was left to the
jury to resolve the conflict and credit one of the experts. See Windslowe,
158 A.3d at 709. Here, the jury credited Dr. Whaley’s conclusion that the
victim died from asphyxiation due to venous obstruction. See N.T. Jury Trial,
9/15/20, at 333. The Commonwealth was not required to prove the
mechanism that caused the obstruction. However, Dr. Whaley testified that
the use of some mechanisms, including the rolled-up t-shirt recovered from
the cell, may not leave a mark on the victim’s skin. Id. at 324-26. Moreover,
the Commonwealth presented evidence that Appellant and the victim were the
only two people in the cell at the time of the incident, the victim had other
injuries indicative of an altercation, and both forensic pathologists agreed
victim’s death did not result from a fall, which was what Appellant initially told
the responding correction officers had happened.10 See id. at 329-30, 424.
Thus, the circumstantial evidence was sufficient to prove that Appellant killed
the victim, either intentionally or unintentionally, with malice.
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10 We note that, at various times, Appellant also told investigating officers that
the victim turned “like he was going to use the bathroom and passed out” and
that he had an epileptic seizure. N.T. Jury Trial at 100, 366. However, the
victim’s medical records did not reveal any “significant disease process or
medical history[,]” including epilepsy, that would explain a spontaneous loss
of consciousness. Id. at 332-33. Furthermore, Appellant’s expert, Dr.
Williams, agreed he did not know “of any pre-existing conditions that would
render [the victim] unconscious.” Id. at 416. He also acknowledged that he
did not review the victim’s medical records before rendering his opinion. See
id. at 416, 418-19.
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In his final claim, Appellant maintains the verdict was against the weight
of the evidence.11 First, he contends the coroner’s office “leaked confidential
information contained in the autopsy report” — namely, that the victim “died
at the hands of another inmate” — before it was made public. Appellant’s
Brief at 4. Appellant insists the “leakage . . . inflamed this false narrative the
[Commonwealth] locked on[to] though there was no scientific evidence to
support” it. Id. Furthermore, he maintains the Commonwealth illegally
accessed his “emails, electronic communications and other documents”
without a court order. Id. Appellant claims he emailed his family in December
of 2018 “concerning being approved bottom bunk status” which would have
“poked holes in [the Commonwealth’s] motive.” Id. at 5. However, he argues
that he has been denied access to these documents, which puts him “at a
disadvantage when contesting the weight of the evidence used to convict
him.” Id.
Our review of a weight claim is well-established:
The weight of the evidence is exclusively for the finder of fact, who
is free to believe all, none or some of the evidence and to
determine the credibility of the witnesses. Resolving contradictory
testimony and questions of credibility are matters for the finder of
fact. It is well-settled that we cannot substitute our judgment for
that of the trier of fact.
Moreover, [a]ppellate review of a weight claim is a review
of the exercise of discretion, not the underlying question of
whether the verdict is against the weight of the evidence. Because
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11Appellant properly preserved his weight claim in the timely filed, counseled
post-sentence motion. See Pa.R.Crim.P. 607(A)(3).
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the trial judge has had the opportunity to hear and see the
evidence presented, an appellate court will give the gravest
consideration to the findings and reasons advanced by the trial
judge when reviewing a trial court's determination that the verdict
is [or is not] against the weight of the evidence. One of the least
assailable reasons for granting or denying a new trial is the lower
court's conviction that the verdict was or was not against the
weight of the evidence and that a new trial should be granted in
the interest of justice.
Furthermore, in order for a defendant to prevail on a
challenge to the weight of the evidence, the evidence must be so
tenuous, vague and uncertain that the verdict shocks the
conscience of the court.
Commonwealth v. Miller, 172 A.3d 632, 642–43 (Pa. Super. 2017)
(citations and quotation marks omitted).
Preliminarily, we emphasize that none of the arguments Appellant
presents in his pro se brief relate to the weight of the evidence supporting his
conviction of third-degree murder. Rather, he complains of information
purportedly leaked to the press, the alleged illegal seizure of his prison
communications, and the alleged denial of his discovery requests. More
importantly, he did not make any of these arguments in either his counseled
or pro se post-sentence motion, during the post-sentence hearing, or in either
his counseled or pro se Rule 1925(b) statement. Thus, they are waived for
our review. See Pa.R.A.P. 302(a) (“Issues not raised in the trial court are
waived and cannot be raised for the first time on appeal.”), 1925(b)(4)(vii)
(“Issues not included in the [Rule 1925(b)] Statement and/or not raised in
accordance with the provisions of this paragraph (b)(4) are waived.”).
Briefly, we note that counsel asserted Appellant’s conviction was against
the weight of the evidence because there were no witnesses to either the
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incident leading the victim’s death, or actions taken by Appellant that may
have caused the victim’s death. See Appellant’s Post-Sentencing Motion
Pursuant to Pa.R.Crim.P. 720, 12/23/20, at 1 (unpaginated); Appellant’s
Concise Statement of Matters Complained of on Appellant Pursuant to Rule
1925(b), 6/9/21, at 2 (unpaginated). The trial court summarily disposed of
this argument as follows:
At the outset, “there is no requirement that a homicide,
including murder in the first degree, be proven by eyewitness
testimony.” Commonwealth v. Crowson, 412 A.2d 1363, 1365
(Pa. 1980). As discussed above, the jurors were free to choose
which evidence to believe, including circumstantial evidence. The
absence of a witness to Santiago’s death or any prior actions taken
by [Appellant] is not of such great weight as to deny justice or
warrant reversal of the jury’s verdict.
Trial Ct. Op., 4/20/21, at 7.
Appellant fails to establish that the trial court’s finding was an abuse of
discretion. See Miller, 172 A.3d at 642-43. Rather, as noted above, he
focuses on other claims which do not relate to the evidence presented to the
jury and were not preserved in the trial court. Thus, no relief is warranted.
Judgment of sentence affirmed. Appellant’s Motion to Direct the District
Attorney to Furnish Appellant with a Copy of Appellee Brief is hereby DENIED
as moot, since the Commonwealth did not file a brief in this matter.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 04/29/2022
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