J-S80015-18

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT

OF

PENNSYLVANIA

Appellee

v.

DAVID BOWENS,

Appellant No. 718 EDA 2018

Appeal from the PCRA Order Entered June 6, 2017

In the Court of Common Pleas of Philadelphia County

Criminal Division at No(s): CP-51-CR-0005367-2010

BEFORE: BENDER, P.J.E., BOWES, J., and NICHOLS, J.

MEMORANDUM BY BENDER, P.J.E.: FILED MARCH 15, 2019

Appellant, David Bowens, appeals pro se from the post-conviction 

court’s June 6, 2017 order, which appears to dismiss, as untimely, his April 

27, 2015 petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42 

Pa.C.S. §§ 9541-9546. We vacate the PCRA court’s order and remand for 

further proceedings.

On January 17, 2012, Appellant was sentenced to an aggregate term of 

271⁄2-55 years’ imprisonment, imposed after he entered into a negotiated 

guilty plea to third degree murder, 18 Pa.C.S. § 2502(c), and other related 

offenses. He did not file a timely post-sentence motion or a direct appeal. 

The docket, in fact, shows that Appellant took no further action until

January 15, 2014, when he filed, pro se, a “Motion for Modification of Sentence 

Nunc Pro Tunc.” Therein, he set forth various reasons supporting his request 
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for modification, including, inter alia, that his sentence constitutes double 

jeopardy, he did not receive a “fair assessment” by the court, and his trial 

counsel was ineffective because counsel did not file a direct appeal, should 

“have requested a merger[],” and did not argue diminished capacity. See 

Motion for Modification of Sentence Nunc Pro Tunc, 1/15/2014, at 1-3

(unnecessary capitalization omitted). Based on the docket, it appears that 

this motion went unacknowledged and unaddressed by the court below. 

On April 27, 2015, Appellant filed, pro se, a PCRA petition, in which he 

raised a myriad of claims, including, among other things, that his sentence 

was unconstitutional, he was “spoofed” by his trial counsel to plead guilty, his 

counsel — “under false pretense” — failed to file an appeal, and his convictions

should have merged for sentencing purposes. See PCRA Petition, 4/27/2015, 

at 3. Moreover, in that petition, he pointed out that his January 15, 2014 

motion for modification of sentence remained pending, and he requested that

the court appoint a lawyer to represent him. Id. at 4, 7. 

Nearly nine months later, on January 29, 2016, David S. Rudenstein, 

Esq., entered his appearance on the docket. Over a year after that — on 

February 23, 2017 — Attorney Rudenstein filed a Turner/Finley1 no-merit 

letter and a motion to withdraw. Therein, Attorney Rudenstein examined the 

issues presented in Appellant’s April 27, 2015 PCRA petition, concluded that 

none have arguable merit, and represented that he could not find any issue 

____________________________________________

1 Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988), and 

Commonwealth v. Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc).
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of arguable merit that could form the basis for PCRA relief after independently 

reviewing the record. See No-Merit Letter, 2/23/2017, at 5-8. In addition, 

Attorney Rudenstein stated in his no-merit letter:

Counsel has inspected [Appellant’s] other filing which was his 

[m]otion for [r]econsideration of [s]entence, filed nunc pro tunc 

on January 15, 2014. This counsel does not believe that the 

[m]otion should be deemed to be a PCRA filing. However, and 

even if it was so considered to be such a filing, [Appellant] did not 

file that until January 15, 2014, and hence, ... even if a PCRA filing, 

it would still be out of time and there would be no exceptions. 

Id. at 3-4. Attorney Rudenstein did not explain why Appellant’s January 15, 

2014 motion for modification of sentence should not be construed as a PCRA 

petition, nor did he specifically list and examine the issues Appellant raised in 

it.

On March 22, 2017, the PCRA court issued a Pa.R.Crim.P. 907 notice of 

its intent to dismiss Appellant’s PCRA petition without a hearing. It briefly 

stated the reason for dismissal as: “Your attorney has determined that the 

issues raised in your pro se [PCRA] petition are without merit. Counsel’s letter 

pursuant to ... [Turner/]Finley ... is attached.” Pa.R.Crim.P. 907 Notice, 

3/22/2017, at 1 (unnumbered pages).2

On March 28, 2017, Appellant filed a motion requesting that he receive 

an extension of time to respond to the Rule 907 notice and Attorney 

____________________________________________

2 We remind the PCRA court that, when considering if counsel has satisfied 

the requirements to be permitted to withdraw, it “must conduct its own 

independent evaluation of the record and agree with counsel that the petition 

is without merit.” Commonwealth v. Freeland, 106 A.3d 768, 774 (Pa. 

Super. 2014) (citations omitted). 
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Rudenstein’s no-merit letter. He alleged that he had not yet received the nomerit letter nor his file, despite purportedly requesting them from Attorney 

Rudenstein for months. See Appellant’s Letter, 3/28/2017. He specifically

asked the PCRA court for an extension of 30 days from his receipt of the nomerit letter to respond to the Rule 907 notice. See id. On April 26, 2017, 

the PCRA court granted Appellant’s request for an extension of time. It 

ordered Appellant to file a response within 25 days, i.e., by May 22, 2017. 

The record does not indicate that Appellant did so. 

Thereafter, on June 6, 2017, the PCRA court dismissed Appellant’s PCRA 

petition. It did not provide its reasons for doing so in its order. Instead, it 

merely set forth, “AND NOW, this 6th day of June, 2017, after consideration 

of the Motion to Dismiss PCRA by the Commonwealth[,] it is ORDERED that 

the Motion to Dismiss PCRA is GRANTED.” PCRA Order, 6/6/2017, at 1 (single 

page). However, our review of the record does not show that the 

Commonwealth filed a motion to dismiss. The order, moreover, stated that 

the PCRA court served it on Attorney Rudenstein, among others, and that “907 

Notice was sent.” Id. Yet, the order — and the corresponding docket entry 

— did not demonstrate that the PCRA court served the order on Appellant. 

Over eight months later, on February 15, 2018, Appellant filed a pro se 

notice of appeal and a concise statement of errors complained of on appeal 

pursuant to Pa.R.A.P. 1925(b). In his Rule 1925(b) statement, Appellant 

averred, inter alia, that:
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4. [T]his appeal should not be denied. The fact is that [Appellant] 

never received a final order from the court. [Appellant] sent to 

the [c]ourt a communication requesting information regarding this 

matter. One docket sheet was provided by this [c]ourt [on] 

11/6/17, in which [Appellant] then found out that his PCRA

[petition] was denied.

5. A request was forwarded to [s]ecurity of this facility who 

handles all legal mail and found out that he never received legal 

mail in the month of June ... 2018. 

Pa.R.A.P. 1925(b), 2/15/2018, at 1 (unnumbered, single page; unnecessary 

capitalization omitted). 

On April 2, 2018, the PCRA court issued a Rule 1925(a) opinion. In that 

opinion, it summarized the procedural history of this case as follows:

On January 15, 2014, Appellant filed a pro se Motion for 

Modification of Sentence Nunc Pro Tunc.

1

 Subsequent thereto, on 

April 27, 2015, Appellant filed a pro se PCRA petition. Counsel 

was appointed to represent him and on February 23, 2017, 

counsel filed a no-merit letter pursuant to [Turner/Finley] and 

a motion to withdraw as counsel.

1 Under the law[,] this filing constituted a PCRA petition 

because the law provides that any document filed after the 

judgment of sentence becomes final must be treated as a 

petition for post-conviction relief, regardless of how a 

petitioner or counsel titles his filing. See Commonwealth 

v. Kubis, 808 A.2d 196, 199 (Pa. Super. 2002) (explaining 

that the PCRA is the sole means for obtaining collateral 

review and any petition filed after judgment of sentence is 

final is treated as a PCRA petition). Here[,] because 

Appellant did not file a post-sentence motion or a direct 

appeal within the time constraints set by law, his conviction 

became final thirty days after January 17, 2012, the date 

[his] sentence was imposed, which for purposes of appeal is 

considered a final order. See 42 Pa.C.S. § 9545(b) and 

Pa.R.A.P. 903(a) (indicating that an appeal must be filed 

within thirty days of the date of the order being appealed 

from is filed).

After carefully reviewing the record and Appellant’s various filings, 

this [c]ourt determined that Appellant’s filings were untimely and 
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that this [c]ourt lacked jurisdiction to address Appellant’s various 

claims. Thus, on March 22, 2017, this [c]ourt sent Appellant 

[Rule] 907 notice advising him that his petition was going to be 

dismissed. He filed responses thereto and after this [c]ourt 

reviewed them along with the remainder of the case, on June 6, 

2017, this [c]ourt carefully reviewed the matter after which it 

issued an order denying Appellant PCRA relief.

On February 15, 2018, Appellant filed a pro se [n]otice of [a]ppeal 

and a pro se [Rule] 1925(b) statement wherein he states, inter 

alia, that he never received a copy of the order dismissing his 

PCRA petition and first learned that it had been dismissed on 

November 6, 2017. He offered no explanation as to why he waited 

three plus months to file his notice of appeal after learning that 

his PCRA petition had been dismissed and this [c]ourt takes no 

position concerning the timeliness of his notice of appeal in light 

of the fact that the question of the timeliness of Appellant’s filing 

of his [n]otice of [a]ppeal is for the Superior Court to decide.

PCRA Court Opinion (PCO), 4/2/2018, at 2-3. After summarizing this case’s 

procedural history, the PCRA court explained that it lacked jurisdiction to 

address the claims Appellant raised in both his January 15, 2014 motion for 

modification and April 27, 2015 PCRA petition due to Appellant’s failure to 

meet the PCRA’s timeliness requirements. See PCO at 4-5. 

Preliminarily, while we recognize that Appellant’s February 15, 2018 

notice of appeal from the PCRA court’s June 6, 2017 order was untimely, we 

conclude a breakdown in the operations of the court occurred and decline to 

quash this appeal. See Commonwealth v. Patterson, 940 A.2d 493, 498 

(Pa. Super. 2007) (“Generally, an appellate court cannot extend the time for 

filing an appeal. Nonetheless, this general rule does not affect the power of 

the courts to grant relief in the case of fraud or breakdown in the processes 

of the court.”) (citations omitted); Commonwealth v. Liebensperger, 904 
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A.2d 40, 44 (Pa. Super. 2006) (entertaining an untimely appeal and observing 

that “[t]his Court has refrained from quashing an appeal as untimely where 

the trial court failed to properly advise the appellant of his appellate rights”)

(citation omitted).

3

 

Looking now to the merits of Appellant’s appeal, we have several 

concerns about the way in which the PCRA proceedings unfolded below. 

Initially, the record is unclear as to whether the PCRA court denied Appellant’s 

January 15, 2014 motion for modification and his April 27, 2015 PCRA petition. 

Troublingly, the PCRA court made no mention of Appellant’s January 15, 2014 

motion until its Rule 1925(a) opinion.4 The PCRA court’s June 6, 2017 order 

did not convey that it was denying both Appellant’s January 15, 2014 motion 

for modification and his April 27, 2015 PCRA petition. Additionally, in its Rule 

907 notice, the PCRA court stated that it was dismissing Appellant’s PCRA 

____________________________________________

3 We note that this Court issued a rule to show cause why Appellant’s appeal 

should not be quashed as untimely filed. See Pa.R.A.P. 903(a) (requiring that 

a notice of appeal be filed within 30 days after the entry of the order from 

which the appeal is taken). Appellant filed a pro se response, in which he 

asserted that he never received the PCRA court’s June 6, 2017 order. See 

Response to Rule to Show Cause, 6/6/2018, at ¶ 2. 

4 Therein, the PCRA court explained that it viewed Appellant’s January 15, 

2014 motion as a PCRA petition. See PCO at 2 n.1. It then analyzed its 

timeliness under the PCRA, and asked us to affirm its dismissal. Id. at 5. 

Nevertheless, the PCRA court had failed to appoint counsel to represent 

Appellant for this petition and allowed it to linger outstanding for years. See 

Pa.R.Crim.P. 904(c) (“[W]hen an unrepresented defendant satisfies the judge 

that the defendant is unable to afford or otherwise procure counsel, the judge 

shall appoint counsel to represent the defendant on the defendant’s first 

petition for post-conviction collateral relief.”). 
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petition because of Attorney Rudenstein’s no-merit letter, which only focused

on the claims raised in Appellant’s April 27, 2015 PCRA petition. See

Pa.R.Crim.P. 907 Notice at 1 (unnumbered pages); No-Merit Letter at 4, 5-8.5 

To add to the confusion, the Commonwealth seems to overlook Appellant’s

April 27, 2015 PCRA petition completely, omitting it entirely from its statement 

of the case. Commonwealth’s Brief at 2.6 We are unsure if this omission is 

an oversight, or if the Commonwealth thinks the April 27, 2015 PCRA petition 

was an amendment to Appellant’s January 15, 2014 motion, rather than a 

separate filing. Thus, given these diverging positions and the lack of clarity 

____________________________________________

5 We reiterate that Attorney Rudenstein did not believe that the January 15, 

2014 motion for modification “should be deemed to be a PCRA filing[,]” 

although he provided no rationale for that assertion. See No-Merit Letter at 

4. We note that “[i]t is well-settled that the PCRA is intended to be the sole 

means of achieving post-conviction relief. ... [A]n untimely post-sentence 

motion filed after finality of judgment is to be treated as a PCRA petition.” 

Commonwealth v. Taylor, 65 A.3d 462, 465, 467 (Pa. Super. 2013)

(citation omitted). 

6 The Commonwealth states the history of the case as follows:

On January 15, 2014, [Appellant] filed a pro se Motion for 

Modification of Sentence Nunc Pro Tunc, which the PCRA court 

treated as a PCRA petition. On February 23, 2017, appointed 

counsel filed a letter pursuant to [Turner/Finley], concluding 

that [Appellant’s] petition was untimely, that there was no 

applicable exception to the jurisdictional time-bar, and his 

substantive claims were otherwise meritless. On June 6, 2017, 

the PCRA court dismissed [Appellant’s] petition as untimely. 

[Appellant] appeals. 

Commonwealth’s Brief at 2. 
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in the record, it must be ascertained exactly which filing(s) the PCRA court is

currently disposing of and its basis for doing so. 

Furthermore, it appears that the PCRA court neglected to rule on 

Attorney Rudenstein’s no-merit letter and motion to withdraw. Accordingly, 

Attorney Rudenstein still represents Appellant, and Appellant should not be 

proceeding pro se on appeal. We also observe that, to the extent the PCRA 

court mistakenly believed that it had permitted Attorney Rudenstein to 

withdraw, it did not properly notify Appellant that it dismissed his PCRA 

petition on June 6, 2017.

7 Given these multiple errors and ambiguities, we 

vacate the PCRA court’s June 6, 2017 order and remand this matter for the 

PCRA court to address these unresolved issues. 

Order vacated. Case remanded. Jurisdiction relinquished. 

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 3/15/19

____________________________________________

7 See Pa.R.Crim.P. 907(4) (“When the petition is dismissed without a hearing, 

the judge promptly shall issue an order to that effect and shall advise the 

defendant by certified mail, return receipt requested, of the right to appeal 

from the final order disposing of the petition and of the time limits within which 

the appeal must be filed. The order shall be filed and served as provided in 

Rule 114.”).