J. S14042/20


NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37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.
J. S14042/20



            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



                                       -2-
J. S14042/20

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.


                                      -3-
J. S14042/20

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


                                        -4-
J. S14042/20



            (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).


                                       -5-
J. S14042/20

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.



                                       -6-
J. S14042/20


Judgment Entered.




JosephD.Seletyn,Esq.
Prothonotary




Date: 04/21/2020




                       -7-
