Com. v. Bailey, S.

• Court: Superior Court of Pennsylvania
• Decided: March 11, 2026
• Docket: 2908 EDA 2024
• Status: Unpublished
• Author: Beck

Opinion

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF : PENNSYLVANIA : v. : : : STEVEN BAILEY : : Appellant : No. 2908 EDA 2024

Appeal from the PCRA Order Entered October 3, 2024 In the Court of Common Pleas of Philadelphia County Criminal Division at No(s): CP-51-CR-0001373-2013

BEFORE: PANELLA, P.J.E., OLSON, J., and BECK, J.

MEMORANDUM BY BECK, J.: FILED MARCH 11, 2026

Steven Bailey (“Bailey”) appeals from the order dismissing his second

petition filed pursuant to the Post Conviction Relief Act (“PCRA”). 1 Bailey

raises various claims under the PCRA and a constitutional challenge to the

statutory sex offender registration requirements under Pennsylvania's Sexual

Offender Registration and Notification Act (“SORNA”). 2 We affirm.

In July 2014, a jury found Bailey guilty of unlawful contact with a minor,

aggravated indecent assault of a child, endangering the welfare of children,

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1 42 Pa.C.S. §§ 9541-9546.

2 42 Pa.C.S. §§ 9799.10–9799.42, as amended by Act of Feb. 21, 2018, P.L.

27, No. 10 (“Act 10”), and Act of June 12, 2018, P.L. 140, No. 29 (“Act 29”). Notably, under Act 10, as amended by Act 29, Subchapter H applies to offenders who committed an offense on or after December 20, 2012. 42 Pa.C.S. § 9799.11(c). J-S47043-25

and indecent assault. The convictions arose from Bailey’s repeated abuse of

his niece beginning when she was twelve years old. The trial court sentenced

Bailey to an aggregate prison sentence of ten to twenty years, followed by

five years of probation. The trial court also ordered Bailey to register as a sex

offender under SORNA, which included lifetime reporting requirements. This

Court affirmed the judgment of sentence, and the Pennsylvania Supreme

Court denied allowance of appeal on August 2, 2016. See Commonwealth

v. Bailey, 747 EDA 2015, 2016 WL 886065 (Pa. Super. Mar. 8, 2016) (non-

precedential decision), appeal denied, 145 A.3d 161 (Pa. 2016).

On February 1, 2019, Bailey filed pro se his first PCRA petition. The

PCRA court appointed counsel. Subsequently, the PCRA court issued notice of

intent to dismiss pursuant to Pa.R.Crim.P. 907. Thereafter, the PCRA court

dismissed the petition.

On October 13, 2022, Bailey filed pro se his second PCRA petition. The

PCRA court appointed counsel, who filed an amended petition, raising claims

of trial counsel’s ineffectiveness, the trial court imposed an illegal sentence by

imposing a punitive registration requirement under SORNA, that Bailey’s due

process rights were violated, and after-discovered evidence. On March 20,

2024, the Commonwealth filed a response, arguing that Bailey’s SORNA claim

be stayed pending the outcome of the Supreme Court’s decision in

Commonwealth v. Torsilieri, 316 A.3d 77, 81 (Pa. 2024) (“Torsilieri II”).

On July 2, 2024, the Commonwealth filed a supplemental response, arguing

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that the SORNA claim was without merit based on the Torsilieri II decision.

The PCRA court issued a Rule 907 notice. Thereafter, it dismissed Bailey’s

petition without a hearing. This timely appeal followed.

On appeal, Bailey raises the following questions for our review:

1. Whether the PCRA court erred by dismissing the PCRA petition when clear and convincing evidence was presented to establish that trial counsel was ineffective for failing to investigate and present an alibi defense when multiple witnesses were available and willing to testify to [Bailey’s] alibi[?]

2. Whether the PCRA court erred by dismissing the PCRA petition when clear and convincing evidence was presented to establish a violation of [Bailey’s] Sixth Amendment right to effective representation of trial counsel, as well as the Commonwealth’s failure to prove each and every element of the crimes charged beyond a reasonable doubt[?]

3. Whether the PCRA court erred by dismissing [Bailey’s] PCRA petition when clear and convincing evidence was presented that established the subsequent discovery of exculpatory evidence that would have exonerated [Bailey] had it been available at the time of trial[?]

4. Whether the PCRA court erred by dismissing [Bailey’s] PCRA petition when clear and convincing evidence was presented to establish the trial court issued an illegal sentence by imposing a punitive registration requirement of SORNA in violation of his due process rights that extended the length of the sentence beyond the statutory maximum[?]

5. Whether the PCRA court erred by failing to grant an evidentiary hearing[?]

Bailey’s Brief at 8.

Prior to considering the merits of the claims raised, this Court “must first

determine whether the instant PCRA petition was timely filed.”

Commonwealth v. Brown, 141 A.3d 491, 499 (Pa. Super. 2016) (citation

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omitted). The timeliness requirement “is mandatory and jurisdictional in

nature, and the court may not ignore it in order to reach the merits of the

petition.” Id. (citation omitted); see also Commonwealth v. Fantauzzi,

275 A.3d 986, 994 (Pa. Super. 2022) (“the timeliness of a PCRA petition is

jurisdictional and if the petition is untimely, courts lack jurisdiction over the

petition and cannot grant relief”). “As the timeliness of a PCRA petition is a

question of law, our standard of review is de novo and our scope of review is

plenary.” Commonwealth v. Callahan, 101 A.3d 118, 121 (Pa. Super.

2014) (citation omitted).

All PCRA petitions, including second or subsequent petitions, must be

filed within one year of the date the judgment of sentence becomes final,

unless the petitioner can plead and prove one of the exceptions to the general

timeliness requirement. 42 Pa.C.S. § 9545(b)(1). The exceptions to the one-

year time-bar include:

(i) 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;

(ii) The fact upon which the claim is predicated were unknown to the petitioner and could not have been ascertained by the exercise of due diligence; or

(iii) 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 the court to apply retroactively.

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Id. § 9545(b)(1)(i-iii). A PCRA petition invoking a statutory exception must

be filed within one year of the date the claim could have been presented. Id.

§ 9545(b)(2).

Bailey’s judgment of sentence became final on October 31, 2016, after

the time to file a petition for writ of certiorari with the United States Supreme

Court expired. See Sup. Ct. R. 13(1) (stating “a petition for a writ of certiorari

to review a judgment in any case, civil or criminal, entered by a state court of

last resort … is timely when it is filed … within 90 days after entry of the

judgment”). Bailey’s instant petition, filed on October 13, 2022, is patently

untimely. Thus, we must determine whether Bailey pled and proved one of

the exceptions to the timeliness requirement.

Bailey first argues that his trial counsel was ineffective for failing to

investigate and present alibi witnesses at trial and file a notice of an alibi.

Bailey’s Brief at 13-15; see also id. at 13 (noting that the alibi witnesses

were his brothers and his employer, and they would have provided evidence

that Bailey was never alone with the house with the victim because he was

working or renovating homes with his brothers).

It is well settled that “claims of ineffective assistance of counsel do not

automatically qualify pursuant to the exceptions to the one-year time

limitation provided in 42 Pa.C.S. § 9545(b)(1)(i)–(iii).” Commonwealth v.

Pursell, 749 A.2d 911, 915 (Pa. 2000); see also Commonwealth v. Yarris,

731 A.2d 581, 586 (Pa. 1999) (“[A]n untimely petition will not be addressed

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simply because it is couched in terms of ineffectiveness.”). Baily makes no

mention of a time-bar exception in regard to this claim, either before the PCRA

court or in his brief on appeal. Thus, we cannot review this claim of

ineffectiveness.

Next, Bailey contends that that the evidence was insufficient to prove

each element of the charged crimes. Id. at 15, 16. In support, he argues

that the victim provided inconsistent and contradictory testimony. Id. at 16.

Although Bailey argues he is raising a sufficiency claim, he appears to

raise a challenge to the weight of the evidence. Commonwealth v. Melvin,

103 A.3d 1, 43 (Pa. Super. 2014) (“An argument regarding the credibility of

a witness’s testimony goes to the weight of the evidence, not the sufficiency

of the evidence.”) (citation and quotation marks omitted). Regardless, neither

claim implicates any timeliness exceptions. Therefore, we cannot address

Bailey’s claim.

Third, Bailey argues that the PCRA court erred in dismissing his petition

because he presented exculpatory evidence that was unavailable at trial and

would have exonerated him. Bailey’s Brief at 17. He maintains he is entitled

to relief under section 9543(a)(2)(vi) (addressing after-discovered evidence),

because there was an alibi witness available. Id. at 17-18. Specifically, Bailey

contends that Kenny Lowery (“Lowery”) came forward several years after

Bailey was convicted and would have testified that he aided Lowery in home

renovations and that Bailey worked in the evenings and slept at the jobsites

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during the relevant time period. Id. According to Bailey, this evidence could

not be obtained through reasonable diligence, this evidence was not

cumulative to other evidence, it would not be used to impeach other

witnesses, and would establish his innocence. Id. at 18.

Again, Bailey fails to raise a timeliness exception related to this claim in

either his PCRA petition or brief, and instead relies on section 9543 to establish

his entitlement to relief. Bailey’s reliance on section 9543(a)(2)(vi) “as a basis

for asserting an after-discovered-evidence claim under the PCRA … did not

suspend [his] initial obligation to establish jurisdiction by alleging and proving

(a) the existence of facts that were unknown to him and (b) his exercise of

due diligence in discovering those facts.” Commonwealth v. Brown, 111

A.3d 171, 177 (Pa. Super. 2015) (citing 42 Pa.C.S. § 9545(b)(1)(ii)).

Therefore, Bailey failed to plead and prove a time-bar exception. Id.

Nevertheless, the PCRA court treated this claim as invoking the newly-

discovered facts exception and explained its dismissal of the claim as follows:

[T]his proposed testimony is from [] Low[e]ry, a former coworker [with whom Bailey] … did home renovations. [] Low[e]ry would testify as to where [Bailey] was working and sleeping at the time of the assaults. Where [Bailey] was working and sleeping during the relevant time would, of course, be known to [Bailey] at the time of trial as would [] Low[e]ry’s existence as a potential alibi witness. [Bailey] has offered no explanation for why he could not have presented [] Low[e]ry at trial. Because this testimony meets neither prong [of section] 9545(b)(l)(ii), it does not meet the standard for newly[-]discovered evidence.

PCRA Court Opinion, 4/4/2025, at 6.

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Even if we accept that Bailey properly invoked the newly-discovered fact

timeliness exception, we agree with the PCRA court that he did not exercise

due diligence in finding Lowery. Bailey plainly knew about Lowery, as they

worked together, yet he made no claim that he attempted to contact or find

Lowery at any time pre- or post- trial to support his alibi defense. See Brown,

111 A.3d at 178 (noting appellant did not exercise due diligence in finding

witness where appellant knew about the witness but failed to contact him to

determine whether the witness had further information about the crime in

question). Thus, we do not have jurisdiction to address this claim.

Fourth, Bailey argues that “the trial court issued an illegal sentence by

imposing a punitive registration requirement of SORNA that extended the

length of the sentence beyond the statutory maximum.” Bailey’s Brief at 18.

He asserts that our Supreme Court held SORNA was unconstitutional as

applied to certain registrants in Commonwealth v. Muniz. Id. at 19 (citing

Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017)). Additionally, Bailey

claims that the registration requirement violated his due process rights

because SORNA states that registrants are “highly likely” to repeat their

behavior and are dangerous, without providing him the opportunity to prove

otherwise. Id. In effect, he contends that he was denied “his right to

reputation through the presumption that he is dangerous and a high risk to

repeat sexually criminal behavior.” Id.

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Preliminarily, we note that our Supreme Court held that registrants

challenging changes to sex-offender registration statutes are not restricted to

using the PCRA as the exclusive means for raising such a challenge.

Commonwealth v. Lacombe, 234 A.3d 602, 617-18 (Pa. 2020). Therefore,

Bailey’s instant claim is not subject to the PCRA’s time limitations, and we

may address his claim. See Commonwealth v. Smith, 240 A.3d 654, 658

(Pa. Super. 2020) (concluding that substantive claims challenging the

application of SORNA’s lifetime registration requirements are not cognizable

under the PCRA and are not subject to the PCRA’s time bar).

Bailey’s constitutional challenges raise “questions of law for which our

standard of review is de novo and our scope of review is plenary.”

Commonwealth v. Torsilieri, 232 A.3d 567, 575 (Pa. 2020) (“Torsilieri I”)

(citation omitted).

In addressing constitutional challenges to legislative enactments, we are ever cognizant that the General Assembly may enact laws which impinge on constitutional rights to protect the health, safety, and welfare of society, but also that any restriction is subject to judicial review to protect the constitutional rights of all citizens. We emphasize that a party challenging a statute must meet the high burden of demonstrating that the statute clearly, palpably, and plainly violates the Constitution.

Id. (citations omitted).

Bailey’s claims are identical to those raised by the defendant in the

Torsilieri line of cases. Importantly, in Torsilieri II, our Supreme Court held

that SORNA subchapter H and did not violate the irrebuttable presumption

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doctrine, see Torsilieri II, 316 A.3d at 91-100, and that subchapter H was

not punitive, id. at 109-10. The Court further concluded that

because a finding that [s]ubchapter H constitutes criminal punishment is a threshold factor in determining the viability of [the] derivative constitutional challenges — that the legislation unconstitutionally usurps judicial power over sentencing in violation of the separation of powers doctrine, constitutes cruel and unusual punishment under the Eighth Amendment, and infringes upon the right to a trial by jury by failing to require that facts which increase the punishment imposed for the underlying crime be found by a reasonable doubt — these constitutional claims fail.

Id. at 110.

Our Supreme Court’s decision in Torsilieri II is conclusive as to the

issues raised by Bailey. Accordingly, Bailey’s claim is without merit.

Finally, Bailey argues that the PCRA court erred in dismissing his petition

without a hearing. See Bailey’s Brief at 19-20. Bailey contends that his claims

of trial counsel ineffectiveness, violations of constitutional rights, discovery of

exculpatory evidence, and the imposition of an illegal sentence warranted a

hearing. Id. at 20.

We have recognized:

The PCRA court has discretion to dismiss a petition without a hearing when the court is satisfied there are no genuine issues concerning any material fact, the defendant is not entitled to post- conviction collateral relief, and no legitimate purpose would be served by further proceedings. To obtain reversal of a PCRA court’s decision to dismiss a petition without a hearing, an appellant must show that he raised a genuine issue of fact which, if resolved in his favor, would have entitled him to relief, or that the court otherwise abused its discretion in denying a hearing.

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Commonwealth v. Smith, 244 A.3d 13, 16 (Pa. Super. 2020) (quotation

marks and citation omitted). We have also explained that “[a]n evidentiary

hearing is not meant to function as a fishing expedition for any possible

evidence that may support some speculative claim.” Commonwealth v.

Grove, 170 A.3d 1127, 1149 (Pa. Super. 2017) (quotation marks and citation

omitted).

Here, Bailey has failed to identify any genuine issues of fact that, if

resolved in his favor, would entitle him to relief. See Bailey’s Brief at 13-19.

As we have already determined that the claims Bailey raised in this appeal are

meritless and/or unreviewable, the PCRA court did not abuse its discretion in

dismissing his petition without a hearing. Accordingly, Bailey’s final issue fails.

As we conclude that the PCRA court’s decision is supported by the

record, we affirm the order dismissing Bailey’s PCRA petition.

Order affirmed.

Date: 3/11/2026

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