Com. v. Baylor, F.

J-A04005-21

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT

OF PENNSYLVANIA

Appellee

v.

FAREED BAYLOR

Appellant No. 804 EDA 2020

Appeal from the PCRA Order entered February 20, 2020

In the Court of Common Pleas of Philadelphia County

Criminal Division at No: CP-51-CR-0803201-2006

BEFORE: STABILE, J., KING, J., and PELLEGRINI, J.*

MEMORANDUM BY STABILE, J.: FILED: APRIL 9, 2021

Appellant, Fareed Baylor, pro se appeals from the February 20, 2020

order of the Court of Common Pleas of Philadelphia County, which dismissed

as untimely his second petition under the Post Conviction Relief Act, 42

Pa.C.S.A. §§ 9541-46. Upon review, we affirm.

The underlying procedural history can be summarized as follows. On

July 6, 2006, Appellant and co-defendant Joshua Henry robbed at gun point

victims Carnell Wilder and Yasir Zarif-El. At a preliminary hearing held

before the Philadelphia Municipal Court, Zarif-El failed to appear.

Nonetheless, based on the testimony of Wilder, the Commonwealth asked

the Municipal Court to hold Appellant for trial on two robbery charges,

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* Retired Senior Judge assigned to the Superior Court.

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among others. The Municipal Court rejected the Commonwealth’s request

and dismissed the charge for the robbery of Zarif-El. “The Commonwealth

never re-arrested [Appellant] on that charge. Nor did it seek review of the

preliminary hearing court’s decision by refiling that charge in [the] Common

Pleas Court. It nevertheless generated a bill of information charging

Appellant with the robbery of victim Zarif-El.” Commonwealth’s Brief at 5.

Thereafter, without objection from trial counsel, the Commonwealth

tried Appellant for all charges, including the robbery offense that had been

dismissed at the preliminary hearing.1 On June 13, 2007, a jury convicted

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1 The Commonwealth also noted the following:

At the commencement of [Appellant]’s trial, counsel for

codefendant Joshua Henry moved to quash the robbery bill

relating to victim Zarif-El. Codefendant’s counsel stated his

objection as follows:

So I think if the Commonwealth – the burden when

that happens is to either rearrest and have another

hearing before a Common Pleas judge on those

particular charges. But the preliminary hearing was

held, and the judge found that was not sufficient as

a matter of law at a preponderance level to hold it on

the robbery, the second robbery.

In response to codefendant’s motion, Judge Wogan sua sponte

“reversed” the preliminary court’s decision and permitted the

Commonwealth to move forward with the additional robbery

charge:

I’m reversing [the Municipal Court judge] for his

error and the robbery charge survives and the

(Footnote Continued Next Page)

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Appellant of conspiracy, two counts of robbery (felony in the first degree for

both victims), and two violations of the Uniform Firearms Act. On August 6,

2007, Appellant was sentenced to two consecutive terms of 70 to 156

months’ incarceration for each robbery, a consecutive term of 54 months to

120 months’ incarceration for criminal conspiracy, and a consecutive term of

36 months’ probation for the Uniform Firearms Act violations.

On direct appeal, Appellant raised eight issues. However, he did not

challenge the Zarif-El robbery conviction on the ground that the underlying

charge had been dismissed and never refiled. We affirmed the judgment of

sentence on May 17, 2010. See Commonwealth v. Baylor, No. 2351 EDA

2007 (Pa. Super. May 17, 2010) (unpublished memorandum). Appellant did

not seek to appeal to the Supreme Court.

On June 16, 2011, Appellant filed a timely PCRA petition. Appellant’s

counseled PCRA petition did not include a claim that trial counsel was

ineffective for failing to object to the trial court’s order permitting the

Commonwealth to proceed on Zarif-El robbery charge. The PCRA court

denied relief on November 16, 2012. On April 28, 2014, we affirmed the

(Footnote Continued) _______________________

Commonwealth is permitted to proceed on both

robbery counts.

At no point did counsel for [Appellant] join in co-counsel’s

motion.

Commonwealth’s Brief at 5-6 (citations to the record omitted).

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PCRA court’s denial of Appellant first PCRA petition. See Commonwealth

v. Baylor, No. 3479 EDA 2012 (Pa. Super., April 28, 2014) (unpublished

memorandum). Appellant did not seek review in the Supreme Court.

In his most recent petition, filed on July 22, 2014 and amended on

August 30, 2017, Appellant asserted that, despite the apparent untimeliness

of his second PCRA petition, he met one or more of the exceptions to the

one-year timeliness bar. Specifically, Appellant averred that the Superior

Court’s decision in Commonwealth v. Williams, 166 A.3d 460 (Pa. Super.

2017)2 qualified as a newly-discovered fact3 and/or a new constitutional

right.4

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2 In Williams we held that the trial court abused its discretion in permitting

the Commonwealth to amend the information to add a new charge where

“[t]he Commonwealth injected [the] new charge into this case at the

eleventh hour in clear disregard for rules whose purpose is to give the

defendant a fair opportunity to prepare and present her defense.”

Williams, 166 A.3d at 464.

3 The newly-discovered fact exception, set forth for in 42 Pa.C.S.A.

§ 9545(b)(1)(ii), requires a petitioner to plead and prove two components:

1) the facts upon which the claim was predicated were unknown, and (2)

these unknown facts could not have been ascertained by the exercise of due

diligence. See Commonwealth v. Burton, 158 A.3d 618, 638 (Pa. 2017).

4 Our Supreme Court has set forth a two-part test to determine the

applicability of 42 Pa.C.S.A. § 9545(b)(1)(iii) to a new decision:

Subsection (iii) of Section 9545 has two requirements. First, it

provides that the right asserted is a constitutional right that was

recognized by the Supreme Court of the United States or this

[C]ourt after the time provided in this section. Second, it

(Footnote Continued Next Page)

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On February 20, 2020, the PCRA court dismissed the instant petition

as untimely. This timely appeal followed. The court did not order a Rule

1925(b) statement but issued an opinion, explaining the reasons for

dismissing Appellant’s petition, i.e., Appellant’s petition was untimely and

failed to establish an exception to the timeliness requirements of the PCRA.

PCRA Court Opinion, 3/12/20, at 1.

In this appeal, Appellant asks us to consider three issues. He first

alleges that the PCRA court erred in not granting his PCRA petition on the

ineffective assistance of counsel grounds. Next, Appellant claims that the

PCRA court erred in not finding merit to his merger claim. Finally, Appellant

alleges that the PCRA court erred in finding his claims waived, given that

they involve the legality of his sentence and legality of sentence is not a

waivable claim. Nowhere did Appellant discuss the timeliness of the instant

appeal in his appellate brief.

(Footnote Continued) _______________________

provides that the right “has been held” by “that court” to apply

retroactively. Thus, a petitioner must prove that there is a

“new” constitutional right and that the right “has been held” by

that court to apply retroactively. The language “has been held”

is in the past tense. These words mean that the action has

already occurred, i.e., “that court” has already held the new

constitutional right to be retroactive to cases on collateral

review. By employing the past tense in writing this provision,

the legislature clearly intended that the right was already

recognized at the time the petition was filed.

Commonwealth v. Abdul–Salaam, 812 A.2d 497, 501 (2002).

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Before we may consider the merits of these contentions, we must

determine whether this Court has jurisdiction to entertain the merits of

Appellant’s issues. As our Supreme Court recently reiterated, “[I]f a PCRA

petition is untimely, neither this Court nor the trial court has jurisdiction

over the petition. Without jurisdiction, we simply do not have the legal

authority to address the substantive claims.” Commonwealth v. Reid, 235

A.3d 1124, 1143 (Pa. 2020) (citation omitted).

As noted, Appellant alleges that the instant PCRA petition is timely

under Williams. According to Appellant, Williams constitutes a newly-

discovered fact exception and/or creates a new constitutional right exception

to the timeliness rule. We disagree.

First, it is well established that a judicial opinion does not qualify as a

previously unknown “fact” capable of triggering the newly-discovered fact

exception under the PCRA. Commonwealth v. Watts, 23 A.3d 980, 986-

987 (Pa. 2011). “[J]udicial determinations are not facts.” Id. at 986.

Second, even if we were to assume that Williams asserted a new right, it

does not satisfy the requirement of 42 Pa.C.S.A. § 9545(b)(1)(iii) as a right

“recognized by the Supreme Court of the United States or the Supreme

Court of Pennsylvania after the time period provided in [Section 9545] and

has been held by that court to apply retroactively.” Finally, the timeliness

requirements of the PCRA petition must be met, even if the underlying claim

is a challenge to the legality of the sentence. See Commonwealth v.

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Fahy, 737 A.2d 214, 223 (Pa. 1999) (“Although legality of sentence is

always subject to review within the PCRA, claims must still first satisfy the

PCRA’s time limits or one of the exceptions thereto”) (citation omitted).

Because Appellant failed to prove that the instant PCRA petition is

timely, we are unable to entertain its merit. Accordingly, we conclude that

the PCRA court did not err in dismissing Appellant’s instant PCRA petition as

untimely.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/9/21

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