Com. v. Bailey, D.

• Court: Superior Court of Pennsylvania
• Decided: May 6, 2022
• Docket: 842 WDA 2021
• Status: Unpublished

Opinion

J-S07030-22

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEMETRIUS BAILEY : : Appellant : No. 842 WDA 2021

Appeal from the PCRA Order Entered July 8, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006409-1994, CP-02-CR-0008102-1994

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : DEMETRIUS BAILEY : : Appellant : No. 843 WDA 2021

Appeal from the PCRA Order Entered July 8, 2021 In the Court of Common Pleas of Allegheny County Criminal Division at No(s): CP-02-CR-0006409-1994, CP-02-CR-0008102-1994

BEFORE: OLSON, J., SULLIVAN, J., and PELLEGRINI, J.*

MEMORANDUM BY SULLIVAN, J.: FILED: MAY 6, 2022

Demetrius Bailey appeals pro se from the order dismissing his serial

petition for relief filed pursuant to the Post Conviction Relief Act (“PCRA”).

See 42 Pa.C.S.A. §§ 9541-9546. We affirm.

____________________________________________

* Retired Senior Judge assigned to the Superior Court. J-S07030-22

In 1994, Bailey shot Michael Sayles in the head after unsuccessfully

demanding money from him, and then took money from Sayles’s pocket as

he lay dead or dying. Following a consolidated trial, a jury convicted Bailey of

second-degree-murder at docket 6409-1994, and robbery at docket 0008102-

1994. The trial court sentenced Bailey to an aggregate mandatory term of life

imprisonment. This Court affirmed the judgment of sentence and our

Supreme Court denied allowance of appeal. See Commonwealth v. Bailey,

673 A.2d 398 (Pa. Super. 1995) (unpublished memorandum); appeal denied,

675 A.2d 1241 (Pa. 1996). Since then, Bailey has filed a total of six

unsuccessful PCRA petitions.

On August 28, 2020, Bailey filed the instant pro se PCRA petition, his

seventh.1 The PCRA court issued a Pa.R.Crim.P. 907 notice of its intent to

dismiss the untimely petition without a hearing on the basis that it lacked

jurisdiction to address the claims raised therein. Bailey filed a pro se response

in opposition to the notice. On July 8, 2020, the PCRA court entered an order

1 The PCRA court initially determined that the instant petition is Bailey’s seventh PCRA petition. See Pa.R.Crim.P. Notice, 6/8/21, at ¶ 1. However, the PCRA court later determined that the instant petition is Bailey’s ninth petition. See Dismissal Order, 7/8/21, at 1. Our review of the record discloses that the petition before this Court is Bailey’s seventh PCRA petition. See Commonwealth v. Bailey, 222 A.3d 815 (Pa. Super. 2019) (unpublished memorandum at *2) (concluding that Bailey’s most recent PCRA petition was his sixth petition).

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dismissing Bailey’s petition. Bailey filed timely notices of appeal at each

docket,2 and both he and the PCRA court complied with Pa.R.A.P. 1925.3

Bailey raises the following issues for our review:

1. Whether PCRA counsel failed to file Bailey’s appellate brief in his first timely PCRA, should be reinstated nunc pro tunc [sic] . . ..

2. Whether Martinez v. Ryan, [566 U.S. 1 (2012),] is retroactive to “ineffectiveness – ti [sic]– trial - counsel claims due to procedural defaulted claims.

3. Whether the prosecutor’s failure to disclose/turnover discovery materials violated Brady [v. Maryland, 373 U.S. 83 (1963)].

4. Whether Bailey is entitled to new trial base [sic] on newly discovered eyewitness evidence/after - discovered evidence in affidavits.

Bailey’s Brief at unnumbered 4 (unnecessary capitalization omitted).

Our standard of review of an order dismissing a PCRA petition is well-

settled:

2 This Court received two notices of appeal, one at each appeal docket. While each notice of appeal lists both trial court docket numbers, the notices differ in that each attaches the corresponding trial court docket. See Commonwealth v. Johnson, 236 A.3d 1141, 1148 (Pa. Super. 2020) (en banc) (holding that so long as the appellant files separate notices of appeal at each trial court docket, the fact that the notices of appeal contain more than one trial court docket number is of no consequence); see also Pa.R.A.P. 341(a) (requiring the filing of separate notices of appeal at each docket when a single order resolves issues arising on more than one trial court docket); Pa.R.A.P. 105(a) (providing that the Rules of Appellate Procedure are to be liberally construed to effectuate justice). In our view, the attachment of separate trial court dockets to each notice of appeal rendered them “separate” for purposes of Rule 341(a). We therefore decline to quash the appeals. 3 In lieu of authoring a Rule 1925(a) opinion, the PCRA court relied on the reasons for dismissal set forth in its Rule 907 notice.

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We review an order dismissing a petition under the PCRA in the light most favorable to the prevailing party at the PCRA level. This review is limited to the findings of the PCRA court and the evidence of record. We will not disturb a PCRA court’s ruling if it is supported by evidence of record and is free of legal error. This Court may affirm a PCRA court’s decision on any grounds if the record supports it. Further, we grant great deference to the factual findings of the PCRA court and will not disturb those findings unless they have no support in the record. However, we afford no such deference to its legal conclusions. Where the petitioner raises questions of law, our standard of review is de novo and our scope of review plenary.

Commonwealth v. Ford, 44 A.3d 1190, 1194 (Pa. Super. 2012) (citations

omitted).

Under the PCRA, any petition “including a second or subsequent

petition, shall be filed within one year of the date the judgment becomes

final[.]” 42 Pa.C.S.A. § 9545(b)(1) (emphasis added). A judgment of

sentence becomes final “at the conclusion of direct review, including

discretionary review in the Supreme Court of Pennsylvania, the Supreme

Court of the United States, and or at the expiration of time for seeking the

review.” Id. § 9545(b)(3). The PCRA’s timeliness requirements are

jurisdictional in nature, and a court may not address the merits of the issues

raised if the PCRA petition was not timely filed. Commonwealth v. Albrecht,

994 A.2d 1091, 1093 (Pa. 2010).

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This Court previously determined that Bailey’s judgment of sentence

became final on July 22, 1996,4 ninety days after the Pennsylvania Supreme

Court declined to grant his petition for allowance of appeal, and Bailey declined

to petition the United States Supreme Court for a writ of certiorari. See

Commonwealth v. Bailey, 984 A.2d 1006 (Pa. Super. 2009) (unpublished

judgment order). The instant petition, filed on August 28, 2020, was filed

more than twenty-four years after the judgment became final. Therefore, the

instant petition is facially untimely under the PCRA. See 42 Pa.C.S.A.

§ 9545(b)(3).

Pennsylvania courts may consider an untimely PCRA petition if the

petitioner can plead and prove one of three exceptions set forth under 42

Pa.C.S.A. § 9545(b)(1). Any PCRA petition invoking one of these exceptions

“shall be filed within one year of the date the claim could have been

presented.” Id. § 9545(b)(2). If the petition is untimely and the petitioner

has not pleaded and proven a timeliness exception, the petition must be

dismissed without a hearing because Pennsylvania courts are without

jurisdiction to consider the merits of the petition. See Commonwealth v.

Taylor, 65 A.3d 462, 468 (Pa. Super. 2013).

4 The PCRA court incorrectly determined that Bailey’s judgment of sentence became final on December 20, 1995. See Pa.R.Crim.P. 907 Notice, 6/8/21, at ¶ 3.

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In his first issue, Bailey claims that after this Court affirmed the

dismissal of his first PCRA petition, his PCRA counsel was ineffective for failing

to file a petition for allowance of appeal in the Pennsylvania Supreme Court.

Bailey contends that the timeliness exception set forth in subsection

9545(b)(1)(ii), which permits review if the petitioner can prove that “the facts

upon which the claim is predicated were unknown to the petitioner and could

not have been ascertained by the exercise of due diligence[,]” applies to his

ineffectiveness claim. See 42 Pa.C.S.A. § 9545(b)(1)(ii).

Our review discloses that this Court affirmed the dismissal of Bailey’s

first PCRA petition on September 17, 1999. In the PCRA petition before this

Court, Bailey failed to: (1) allege the date that he discovered that PCRA

counsel failed to file a petition for allowance of appeal; (2) explain to the PCRA

court why his ineffectiveness claim could not have been discovered twenty

years earlier through the exercise of due diligence, given that the time to file

a petition for allowance of appeal expired in 1999; and (3) allege that the

instant petition was filed within one year of the date of his belated discovery.

As Bailey failed to prove the applicability of subsection 9545(b)(1)(ii) to his

ineffectiveness claim, the PCRA court properly determined that it lacked

jurisdiction to address it.5 Accordingly, Bailey’s first issue merits no relief.

5 The PCRA court incorrectly analyzed Bailey’s claim of PCRA counsel’s ineffectiveness as a claim that direct appeal counsel failed to file a petition for allowance of appeal in our Supreme Court after this Court affirmed his

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In his second issue, Bailey argues that the United States Supreme

Court’s decision in Martinez6 created a newly-recognized constitutional right

that applies retroactively to ineffectiveness claims on collateral review. Bailey

contends that the timeliness exception set forth in subsection 9545(b)(1)(iii),

which permits review if the petitioner can prove that “the right asserted is a

constitutional right that was recognized by the Supreme Court of the United

States or the Supreme Court of Pennsylvania after the time period provided

in this section and has been held by that court to apply retroactively[,]” applies

to his claim of PCRA counsel’s ineffectiveness. See 42 Pa.C.S.A.

§ 9545(b)(1)(ii).

The PCRA court considered Bailey’s second issue and determined that,

while Martinez represents a significant development in federal habeas corpus

law, it did not create a newly-recognized constitutional right that would trigger

the timeliness exception in subsection 9545(b)(1)(iii). See PCRA Court

Opinion, 6/8/21, at ¶ 7.

judgment of sentence. However, as explained above, direct appeal counsel did, in fact, file a petition for allowance of appeal in relation to Bailey’s judgment of sentence, which petition was denied by our Supreme Court on April 23, 1996.

6 In Martinez, the United States Supreme Court recognized that for purposes of federal habeas corpus relief, inadequate assistance of counsel at initial- review collateral proceedings may establish cause for a prisoner’s procedural default of a claim of ineffective assistance of trial counsel. See Martinez, 566 U.S. at 9.

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We discern no abuse of discretion by the PCRA court in reaching its

determination regarding Bailey’s second issue. The Martinez Court made

clear that its holding was not a “constitutional ruling.” See Martinez, 566

U.S. at 16. Moreover, this Court has ruled that Martinez “is of no moment

with respect to the way Pennsylvania courts apply the plain language of the

time bar set forth in . . . the PCRA.” Commonwealth v. Saunders, 60 A.3d

162, 165 (Pa. Super. 2013). Thus, as Bailey failed to prove the applicability

of subsection 9545(b)(1)(iii) to his ineffectiveness claim, the PCRA court was

without jurisdiction to address it. Accordingly, Bailey’s second issue merits no

relief.

In his third issue, Bailey contends that the prosecutor in his 1994 trial

failed to disclose certain discovery materials in violation of Brady.7 Bailey

contends that the timeliness exception set forth in subsection 9545(b)(1)(i),

which permits review if the petitioner can prove that “the failure to raise the

claim previously was the result of interference by government officials with

the presentation of the claim in violation of the Constitution or laws of this

Commonwealth or the Constitution or laws of the United States[,]” applies to

his Brady claim. See 42 Pa.C.S.A. § 9545(b)(1)(i).

7 In Brady, the United States Supreme Court held that “the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87.

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The PCRA court considered Bailey’s third issue and determined that

Bailey failed to prove the applicability of the timeliness exception provided by

subsection 9545(b)(1)(i). The PCRA court reasoned:

[Bailey] again fails to state when and how he discovered the existence of this alleged Brady material, and he does not explain why this material could not have been obtained earlier with the exercise of due diligence, particularly since it appears that the material would have been the type to be subject to mandatory disclosure under the discovery rules. As such, he has failed to plead and prove the application of this timeliness exception as well.

PCRA Court Opinion, 6/8/21, at ¶ 8.

We discern no abuse of discretion by the PCRA court in reaching its

determination regarding Bailey’s third issue. Although a properly pleaded

Brady claim may fall within the governmental interference exception, a

petition invoking the exception must establish that the petitioner could not

have known of the governmental interference earlier through the exercise of

reasonable diligence, and that he filed his petition within one year of the date

he discovered such interference. See 42 Pa.C.S.A. § 9545(b)(1)(i), (2); see

also Commonwealth v. Williams, 168 A.3d 97, 106 (Pa. 2017). In the

instant petition, Bailey failed to set forth any indication as to when and how

he discovered the Brady material that the Commonwealth allegedly withheld

from him, nor any reasonable explanation as to why he could not have

previously discovered an alleged Brady violation through the exercise of due

diligence. Thus, as Bailey failed to prove the applicability of subsection

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9545(b)(1)(i) to his Brady claim, the PCRA court was without jurisdiction to

address it. Accordingly, Bailey’s third issue merits no relief.

In his fourth issue, Bailey contends that he is entitled to a new trial

based on newly discovered or after-discovered evidence. However, this issue

was not raised in Bailey’s PCRA petition. Thus, he did not preserve it for our

review. See Pa.R.A.P. 302(a) (providing that issue not raised in the lower

court are waived and may not be raised for the first time on appeal).

Finally, Bailey claims that the PCRA court should have authored an

opinion pursuant to Pa.R.A.P. 1925(a), and asks this Court to remand for the

PCRA court to prepare such an opinion.

Pursuant to Rule 1925(a), a lower court is required to author a separate

opinion only “if the reasons for the order do not already appear of record.”

Pa.R.A.P. 1925(a). If the reasons for the lower court’s rulings already appear

of record, the court “shall specify in writing the place in the record where such

reasons may be found.” Id.

In the instant matter, the PCRA court specified in writing the place in

the record where the reasons for the dismissal of Bailey’s petition can be

found, i.e., its Rule 907 notice of intent to dismiss. See Order, 9/15/21, at

unnumbered 1-2. As the Rule 907 notice provides the reasons for the PCRA

court’s dismissal order, we decline to remand for an additional opinion.

In sum, we conclude that because Bailey failed to plead and prove the

applicability of any timeliness exception in his PCRA petition, the PCRA court

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properly determined that it lacked jurisdiction to consider the merits of any of

his issues. See Taylor, 65 A.3d at 468. Accordingly, we affirm the order

dismissing Bailey’s seventh PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq. Prothonotary

Date: 5/6/2022

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