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[U] Commonwealth v. Fowler

Superior Court of Pennsylvania

March 3, 2014

COMMONWEALTH OF PENNSYLVANIA, Appellee
v.
TERRANCE FOWLER, Appellant

NON-PRECEDENTIAL DECISION

Appeal from the PCRA Order July 17, 2013, Court of Common Pleas, Erie County, Criminal Division at No. CP-25-CR-0002536-2010

BEFORE: FORD ELLIOTT, P.J.E., DONOHUE and PLATT [*] , JJ.

MEMORANDUM

DONOHUE, J.

Terrance Fowler ("Fowler") appeals pro se from the July 17, 2013 order denying his petition filed pursuant to the Post Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546 ("PCRA"), without a hearing. After careful review, we affirm.

The evidence adduced at trial is as follows. Aleksandr Cheremnykh testified that on July 7, 2010, he owned and was working at a jewelry store when two masked men came in wielding guns. One pointed a handgun at him and ordered him to open the safe. When he refused, the perpetrator shot him in the chest. The two men took several silver certificates and keys to the display shelves.

Bruce Wagner, who lived around the corner from the jewelry store, testified that at approximately 10:50 a.m. on July 7, 2010, he observed Fowler, who was driving a green four-door car, park near his house. Fowler and his accomplice walked in the direction of the jewelry store, and returned to the car roughly 10 minutes later and drove away. Fowler and his accomplice returned five minutes after that and again parked in about the same spot. The men again walked in the direction of the store. When the men walked away, Wagner ran out of his house and wrote down the license plate number on the car. The men came running back to the car approximately 15 minutes later and again drove away from the area.

Wagner turned on his scanner and learned the nearby jewelry store had been robbed. He flagged down a police officer he saw driving by in a marked cruiser and gave the officer his written description of the men he saw and their vehicle. The officer looked around the area and found a five-dollar silver certificate in the area where the car had been parked.

Police went to Fowler's house on July 7, 2010 at approximately 1:00 p.m. They observed a green four door vehicle in the driveway bearing the same license plate number that Wagner had reported. When asked, Fowler told police that he had been in control of the car all day.

Fowler's father, James Fowler, testified that he and Fowler shared a residence. According to James Fowler, Fowler left the house between 8:00 and 8:30 a.m. to take his fiancée to work and daughter to daycare. Although he was not certain, he did not believe he was gone for more than an hour. He further testified that when the police came to the house, Fowler had only been home for less than an hour. Fowler's cousin, Tabet Vaughn, testified that Fowler has a reputation for being "peaceful, quiet and loving, good family guy." N.T., 7/15/11, at 63.

Following the two-day trial, a jury convicted Fowler of attempted homicide, aggravated assault, conspiracy to commit robbery, and possessing instruments of crime. On September 13, 2011, Fowler filed a post-trial motion challenging the weight and sufficiency of the evidence to support a conviction, which the trial court denied. On September 20, 2011, the court sentenced Fowler to an aggregate term of 27½ to 55 years in prison. Fowler filed a post-sentence motion on September 28, 2011, seeking a reduction of sentence, which the trial court denied on October 10, 2010.

On direct appeal, counsel for Fowler filed an Anders[1] brief and a motion to withdraw, asserting that the appeal was wholly frivolous. On June 1, 2012, this Court affirmed Fowler's judgment of sentence and granted counsel permission to withdraw.

On April 16, 2013, Fowler filed a timely pro se petition for PCRA relief. The PCRA court appointed counsel, who filed a supplemental PCRA petition on Fowler's behalf.[2] The Commonwealth filed its response on June 20, 2013. On June 21, 2013, the PCRA court filed notice of its intention to dismiss Fowler's PCRA petition without a hearing pursuant to Pa.R.Crim.P 907(1) ("Rule 907"), based on its conclusion that all claims raised therein were meritless. Fowler filed a response objecting to the Rule 907 notice on July 8, 2013. The PCRA court ultimately dismissed Fowler's PCRA petition on July 17, 2013.

Fowler filed a timely counseled notice of appeal on August 13, 2013. On September 18, 2013, Fowler filed a motion in this Court requesting to represent himself on appeal. In response, we remanded the record to the PCRA court to hold a hearing pursuant to Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998), to determine whether Fowler's waiver of his right to counsel was knowing, voluntary and intelligent. On October 15, 2013, following the Grazier hearing, the PCRA court granted Fowler's request to proceed pro se.

On appeal, Fowler raises the following issues for our review:
A. Was [Fowler] denied his right to effective assistance of counsel in violation of Article I § 9 of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments to the United States Constitution when trial counsel failed to request an alibi instruction after presenting alibi evidence[?]
B. Was [Fowler] denied his right to effective assistance of counsel in violation of Article I ยง 9 of the Pennsylvania Constitution and the Sixth and Fourteenth Amendments to the United States Constitution when trial counsel failed to file a motion to ...

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