Com. v. Traub, B. ( 2020 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
BAYMAN TRAUB, : No. 1126 EDA 2019
:
Appellant :
Appeal from the PCRA Order Entered March 15 2019,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0823771-1992
BEFORE: BOWES, J., KING, J., AND FORD ELLIOTT, P.J.E.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED APRIL 21, 2020
Bayman Traub appeals from the March 15, 2019 order dismissing as
untimely his serial petition filed pursuant to the Post Conviction Relief Act
(“PCRA”), 42 Pa.C.S.A. §§ 9541-9546. After careful review, we affirm.
The PCRA court summarized the relevant facts and procedural history
of this case as follows:
In 1992, [appellant] and two companions entered
victim Earl Hackshaw’s home, a known drug house,
and fatally shot him. On March 4, 1994, a jury found
[appellant] guilty of second degree murder, robbery,
conspiracy, and one violation of the Uniform Firearms
Act. The Honorable James A. Lineberger sentenced
[appellant] to a mandatory term of life imprisonment
for murder.[Footnote 1] [Appellant] did not file a
direct appeal.
[Footnote 1] [Appellant] was sentenced
to concurrent terms on his remaining
charges.
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On July 29, 1996, [appellant] filed a pro se PCRA
petition, seeking to have his appellate rights
reinstated nunc pro tunc. This request was granted
on August 27, 1998. The Superior Court affirmed
[appellant’s] judgment of sentence on December 7,
1999. [See Commonwealth v. Traub, 750 A.2d 377(Pa.Super. 1999).] [Appellant] failed to file a timely
petition for allocator to the Pennsylvania Supreme
Court. Instead, he filed a Motion to File Petition for
Allowance of Appeal Nunc Pro Tunc, which was
denied on August 10, 2000.
On March 27, 2001, [appellant] filed his first
substantive PCRA petition. This was dismissed on
September 26, 2002. No appeal was taken. On
March 22, 2006, [appellant] filed a second PCRA
petition. This was dismissed as untimely on July 16,
2008. Once again, [appellant] did not appeal this
dismissal.
On September 23, 2008, [appellant] filed a third PCRA
petition. This was dismissed as untimely on June 30,
2011. [Appellant] appealed. The Superior Court
affirmed the dismissal on May 18, 2012. [See
Commonwealth v. Traub, 50 A.3d 245 (Pa.Super.
2012).] On August 10, 2015, [appellant] filed a fourth
PCRA petition. This was dismissed as untimely on
May 13, 2016. [Appellant] did not file an appeal.
PCRA court opinion, 10/8/19 at 2.
Appellant filed the instant PCRA petition, his fifth, on July 6, 2018. On
February 11, 2019, the PCRA court provided appellant with notice of its
intention to dismiss his petition without a hearing, pursuant to
Pa.R.Crim.P. 907(1). The PCRA court filed an amended Rule 907 notice on
February 22, 2019, correcting the date by which appellant could file his
response. Appellant filed a response to the PCRA court’s Rule 907 notice on
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March 4, 2019. Thereafter, on March 15, 2019, the PCRA court dismissed
appellant’s petition as untimely. This timely appeal followed.1
Appellant raises the following issue for our review:
Whether the PCRA Court erred in denying the PCRA
[petition] as untimely as it was timely under the
change in law as announced by the United States
Supreme Court in McCoy v. Louisiana[, 138 S.Ct.
1500 (2018),] and that decision is retroactively
applicable and analogous to [appellant’s] case?
Appellant’s brief at 8.
Proper appellate review of a PCRA court’s dismissal of a PCRA petition
is limited to the examination of “whether the PCRA court’s determination is
supported by the record and free of legal error.” Commonwealth v. Miller,
102 A.3d 988, 992 (Pa.Super. 2014) (citation omitted). “The PCRA court’s
findings will not be disturbed unless there is no support for the findings in the
certified record.” Commonwealth v. Lawson, 90 A.3d 1, 4 (Pa.Super. 2014)
(citations omitted). “This Court grants great deference to the findings of the
PCRA court, and we will not disturb those findings merely because the record
could support a contrary holding.” Commonwealth v. Hickman, 799 A.2d
136, 140 (Pa.Super. 2002) (citation omitted).
Preliminarily, we must consider the timeliness of appellant’s PCRA
petition because it implicates the authority of this court to grant any relief.
1 We note that the PCRA court did not order appellant to file a concise
statement of errors complained of on appeal, in accordance with
Pa.R.A.P. 1925(b). On October 8, 2019, the PCRA court filed its opinion.
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Commonwealth v. Davis, 86 A.3d 883, 887 (Pa.Super. 2014) (citation
omitted). All PCRA petitions, including second and subsequent petitions, must
be filed within one year of when an appellant’s judgment of sentence becomes
final. See 42 Pa.C.S.A. § 9545(b)(1). “[A] judgment becomes final at the
conclusion of direct review, including discretionary review in the Supreme
Court of the United States and the Supreme Court of Pennsylvania, or at the
expiration of time for seeking the review.” 42 Pa.C.S.A. § 9545(b)(3).
Here, the record reveals that appellant’s judgment of sentence became
final on January 7, 2000, 30 days after a panel of this court affirmed
appellant’s judgment of sentence and the time for filing a petition for
allocator with our supreme court expired. See id. Accordingly, appellant
had until January 7, 2001, to file a timely PCRA petition. See id. at
§ 9545(b)(1). Appellant’s instant petition was filed on July 6, 2018, more
than 17 years after his judgment of sentence became final, and is patently
untimely, unless appellant can plead and prove that one of the three statutory
exceptions to the one-year jurisdictional time-bar applies.
The three statutory exceptions to the PCRA time-bar are as follows:
(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 facts upon which the claim is predicated
were unknown to the petitioner and could not
have been ascertained by the exercise of due
diligence; or
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(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 that court to
apply retroactively.
42 Pa.C.S.A. § 9545(b)(1)(i-iii).
Instantly, appellant invokes the newly recognized constitutional right
exception set forth in Section 9545(b)(1)(iii) and argues that the United States
Supreme Court’s holding in McCoy announced a new constitutional right that
applies retroactively to his case. (Appellant’s brief at 13-15.) In McCoy, the
defendant’s counsel conceded during the guilt phase of a capital trial that his
client committed three murders. McCoy, 138 S.Ct. at 1505. Counsel’s
concession came despite the defendant’s “vociferously insist[ing] that he did
not engage in the charged acts and adamantly object[ing] to any admission
of guilt.” Id. Consequently, the McCoy Court held that criminal defendants
have a Sixth Amendment right “to insist that counsel refrain from admitting
guilt, even when counsel’s experienced-based view is that confessing guilt
offers the defendant the best chance to avoid the death penalty.” Id.Appellant maintains that the McCoy holding supports his allegation that a
“structural error”2 in this case warrants merit review of his otherwise untimely
2The Supreme Court of the United States has defined a structural error as a
constitutional violation affecting the “framework within which the trial
proceeds, rather than simply an error in the trial process itself.” Arizona v.
Fulminante, 499 U.S. 279, 310 (1991).
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PCRA petition. (Appellant’s brief at 13; see also McCoy, 138 S.Ct. at 1511.)
For the following reasons, we find that appellant’s contention is meritless.
It is well settled that “an allegation of a structural error does not, in and
of itself, surmount the jurisdictional time bar of Section 9545(b).”
Commonwealth v. Baroni, 827 A.2d 419, 422 (Pa. 2003). Moreover, even
assuming that McCoy announced a newly recognized constitutional right,
appellant has failed to establish that the McCoy decision applies retroactively
to cases on collateral review. The Supreme Court of Pennsylvania has
expressly stated that “the language ‘has been held’ in Section 9545(b)(1)(iii)
means that a retroactivity determination must exist at the time that the
petition is filed.” Commonwealth v. Abdul-Salaam, 812 A.2d 497, 502 (Pa.
2002) (emphasis added). The Supreme Court of the United States has also
made no such determination. Lastly, we agree with the PCRA court’s rationale
that to the extent appellant relies on McCoy, that case is distinguishable.
Whereas counsel in McCoy conceded that the defendant committed three
murders, appellant’s counsel in the case sub judice did not concede guilt, but
rather argued that appellant was innocent based upon a theory of
self-defense. (See PCRA court opinion, 10/18/19 at 9.)
Accordingly, for all the foregoing reasons, we find that the PCRA court
properly dismissed appellant’s PCRA petition as untimely filed and no relief is
due.
Order affirmed.
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Judgment Entered.
JosephD.Seletyn,Esq.
Prothonotary
Date: 04/21/2020
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