J-S50037-16

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

MARKALE ALSAMAD SOWELL

Appellant No. 2079 MDA 2015

Appeal from the PCRA Order September 9, 2015

In the Court of Common Pleas of Lycoming County

Criminal Division at No(s): CP-41-CR-0001643-2010

BEFORE: MUNDY, J., STABILE, J., and FITZGERALD, J.*

MEMORANDUM BY MUNDY, J.: FILED JUNE 29, 2016

Appellant, Markale Alsamad Sowell, appeals pro se from the 

September 9, 2015 order denying his first petition for relief filed pursuant to 

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546.1 After 

careful review, we affirm.

We summarize the relevant procedural history of this case as follows. 

On August 3, 2011, a jury convicted Appellant of one count each of fleeing 

or attempting to allude a police officer, reckless driving, driving without a 

license, persons not to possess firearms, firearms not to be carried without a 

license, simple assault, and two counts of recklessly endangering another 

____________________________________________

*

Former Justice specially assigned to the Superior Court.

1 The Commonwealth elected not to file a brief in this matter.
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person (REAP).2 On November 30, 2011, the trial court imposed an 

aggregate sentence of 81⁄2 to 17 years’ imprisonment. Appellant filed a 

timely notice of appeal. On November 26, 2013, this Court affirmed the 

judgment of sentence, and our Supreme Court denied Appellant’s petition for 

allowance of appeal on July 30, 2014. Commonwealth v. Sowell, 91 A.3d 

1296 (Pa. Super. 2013) (unpublished memorandum), appeal denied, 96 

A.3d 1027 (Pa. 2014). Appellant did not seek a writ of certiorari from the 

United States Supreme Court.

On September 29, 2014, Appellant filed the instant timely pro se PCRA 

petition. The PCRA court appointed counsel, who subsequently filed a 

petition to withdraw as counsel along with a “no-merit” letter pursuant to 

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

Finley, 550 A.2d 213 (Pa. Super. 1988) (en banc), and their progeny. Upon 

receiving the Turner/Finley letter, Appellant requested that he be 

permitted to proceed pro se. After a colloquy, the PCRA court granted 

Appellant’s request. On August 4, 2015, the PCRA court entered an order 

notifying Appellant of its intention to dismiss his PCRA petition without a 

hearing under Pennsylvania Rule of Criminal Procedure 907. Appellant filed 

a timely pro se response on August 24, 2015. On September 9, 2015, the 

____________________________________________

2 75 Pa.C.S.A. §§ 3733, 3736, 1501; and 18 Pa.C.S.A. §§ 6105, 6106, 2701, 

2705, respectively.
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PCRA court entered an order denying Appellant’s PCRA petition. On 

September 18, 2015, Appellant filed a timely pro se notice of appeal.3

On appeal, Appellant raises the following three issues for our review.

I. Whether the trial court erred when it 

sentenced [Appellant] to a term of 18 to 36 

months[’] incarceration for a second offense 

[of] fleeing and eluding, specifically where 

[Appellant] has previously been convicted of 

fleeing and eluding[,] is it not against the 

statue [sic] to sentence [Appellant] to more 

than 6 months?

II. Whether it was error to sentence [Appellant] 

on the charge of [REAP], when specifically the 

alleged victims of this charge failed to appear 

and have never appeared to be cross[-

]examined and have their testimony entered, 

thereby convicting [Appellant] on mere 

hearsay testimony?

III. Whether the [trial] court committed error when 

it held [sic] the verdict for the charges of 

[REAP] where one of the essential elements 

was not met, specifically the element of fear of 

death or bodily injury, as neither of the victims 

ever appeared at any of the proceedings and 

were otherwise available to do so?

Appellant’s Brief at 3.4

____________________________________________

3 Appellant and the PCRA court have complied with Pennsylvania Rule of 

Appellate Procedure 1925.

4 We note that Appellant’s brief does not contain pagination. Therefore, we 

have assigned a page number to each corresponding page after the table of 

contents for the convenience of the reader.
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We begin by noting our well-settled standard of review. “In reviewing 

the denial of PCRA relief, we examine whether the PCRA court’s 

determination is supported by the record and free of legal error.” 

Commonwealth v. Fears, 86 A.3d 795, 803 (Pa. 2014) (internal quotation 

marks and citation omitted). “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. 

Spotz, 84 A.3d 294, 311 (Pa. 2014) (citation omitted). “It is well-settled 

that a PCRA court’s credibility determinations are binding upon an appellate 

court so long as they are supported by the record.” Commonwealth v. 

Robinson, 82 A.3d 998, 1013 (Pa. 2013) (citation omitted). However, this 

Court reviews the PCRA court’s legal conclusions de novo. Commonwealth 

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

In his first issue, Appellant argues that his sentence of 18 to 36 

months’ imprisonment for fleeing or eluding is illegal, because the statutory 

maximum was six months’ imprisonment under 75 Pa.C.S.A. § 6503. 

Appellant’s Brief at 7. It is axiomatic that “challenges to an illegal sentence 

can never be waived and may be reviewed sua sponte by this Court.” 

Commonwealth v. Tanner, 61 A.3d 1043, 1046 (Pa. Super. 2013) 

(citation omitted). It is equally well-established that Pennsylvania law does 

not tolerate an illegal sentence, for “[a] challenge to the legality of a 

sentence ... may be entertained as long as the reviewing court has 
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jurisdiction.” Commonwealth v. Borovichka, 18 A.3d 1242, 1254 (Pa. 

Super. 2011) (citation omitted). “If no statutory authorization exists for a 

particular sentence, that sentence is illegal and subject to correction.” 

Commonwealth v. Hopkins, 67 A.3d 817, 821 (Pa. Super. 2013) (citation 

omitted). “An illegal sentence must be vacated.” Id. “Issues relating to the 

legality of a sentence are questions of law[.] ... Our standard of review over 

such questions is de novo and our scope of review is plenary.” 

Commonwealth v. Akbar, 91 A.3d 227, 238 (Pa. Super. 2014) (citations 

omitted).

It is true that at the time Appellant was sentenced, Section 6503 of 

the Motor Vehicle Code provided as follows.

§ 6503. Subsequent convictions of certain 

offenses

(a) General offenses.--Every person convicted of a 

second or subsequent violation of any of the 

following provisions shall be sentenced to pay a fine 

of not less than $200 nor more than $1,000 or to 

imprisonment for not more than six months, or both:

Section 1543(a) (relating to driving while operating 

privilege is suspended or revoked) except as set 

forth in subsection (a.1).

Section 3367 (relating to racing on highways).

Section 3733 (relating to fleeing or attempting to 

elude police officer).

Section 3734 (relating to driving without lights to 

avoid identification or arrest).

Section 3748 (relating to false reports).
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75 Pa.C.S.A. § 6503(a).5 In this case, Appellant was sentenced under 

Section 3733(a.2), which provides as follows.

§ 3733. Fleeing or attempting to elude police 

officer

...

(a.2) Grading.—

(1) Except as provided in paragraph (2), an offense 

under subsection (a) constitutes a misdemeanor of 

the second degree. Any driver upon conviction shall 

pay an additional fine of $500. This fine shall be in 

addition to and not in lieu of all other fines, court 

expenses, jail sentences or penalties.

(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.

Id. § 3733(a.2).6 

____________________________________________

5 On July 9, 2012, the General Assembly amended Section 6503(a) to 

remove Section 3733 from its text.

6 On direct appeal, we previously noted that “[Appellant] took the police on a 

high[-]speed chase through busy intersections in the City of Williamsport.” 

(Footnote Continued Next Page)
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This Court already considered and rejected Appellant’s argument in 

Commonwealth v. Bowen, 55 A.3d 1254 (Pa. Super. 2012), appeal 

denied, 64 A.3d 630 (Pa. 2013). In Bowen, this Court undertook an 

extensive analysis of Sections 3733(a.2) and 6503. At the conclusion of 

which, this Court held that “the General Assembly created Section 

3733(a.2)(2) to add an aggravated offense level to the crime of fleeing or 

attempting to elude police.” Id. at 1269-1270. We concluded that Section 

3733(a.2) is a specific provision which controls the more general provision at 

Section 6503. Id. at 1270. Therefore, in such cases, we concluded that the 

statutory maximum sentence was not six months’ imprisonment pursuant to 

Section 6503, as Appellant argues here. Id. As Appellant’s argument is 

foreclosed by Bowen, we conclude Appellant’s sentence is not illegal.7

We address Appellant’s remaining two issues together, as his brief 

does so as well. Appellant argues that the Commonwealth failed to meet its 

burden in proving REAP because “neither victim of this crime had given a 

(Footnote Continued) _______________________

Sowell, supra at 2 (some brackets added), quoting Trial Court Opinion, 

11/30/12, at 1-2. The jury explicitly made this finding on its verdict slip. 

N.T., 8/3/11, at 28.

7 Appellant acknowledges Bowen, but baldly states that we should ignore it 

because it was decided subsequent to his sentence. Appellant’s Brief at 8. 

We decline Appellant’s invitation to ignore a binding case that is directly on 

point, which incidentally was decided while Appellant’s direct appeal was 

pending.
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statement, appeared at court, or testified as to any part of this crime[.]” 

Appellant’s Brief at 9. 

In order to be eligible for relief under the PCRA, the statute requires 

the petitioner to show the following by a preponderance of the evidence.

§ 9543. Eligibility for relief

(a) General rule.--To be eligible for relief under 

this subchapter, the petitioner must plead and prove 

by a preponderance of the evidence all of the 

following:

...

(2) That the conviction or sentence resulted from 

one or more of the following: 

(i) A violation 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. 

...

(3) That the allegation of error has not been 

previously litigated or waived. 

...

42 Pa.C.S.A. § 9543(a). An issue is waived under the PCRA “if the petitioner 

could have raised it but failed to do so before trial, at trial, during unitary 

review, on appeal or in a prior state postconviction proceeding.” Id.

§ 9544(b).
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Here, Appellant’s challenge to the sufficiency of the Commonwealth’s 

evidence could have been raised on direct appeal, but was not. See 

generally Pa.R.Crim.P. 606(A)(7). Therefore, Appellant’s second and third 

issues are waived under the parameters of the PCRA.8 See 42 Pa.C.S.A. 

§§ 9543(a), 9544(b); accord Commonwealth v. Rachak, 62 A.3d 389, 

391 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013).

Based on the foregoing, we conclude all of Appellant’s issues are either 

devoid of merit or waived. Accordingly, the PCRA court’s September 9, 2015 

order is affirmed.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 6/29/2016

____________________________________________

8 We note that Appellant referenced this issue on direct appeal as an alleged 

violation of the Confrontation Clause, and we found it to be without merit. 

Sowell, supra at 10-11.