J-S35001-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                      IN THE SUPERIOR COURT OF
                                                        PENNSYLVANIA
                            Appellee

                       v.

GREGORY M. BAKER

                            Appellant                 No. 1109 WDA 2015


                  Appeal from the PCRA Order June 23, 2015
                In the Court of Common Pleas of Beaver County
              Criminal Division at No(s): CP-04-CR-0000197-2010


BEFORE: LAZARUS, J., RANSOM, J., and STEVENS, P.J.E.*

MEMORANDUM BY LAZARUS, J.:                        FILED SEPTEMBER 8, 2017

        Gregory M. Baker appeals from the order, entered in the Court of

Common Pleas of Beaver County, dismissing his petition filed pursuant to the

Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-9546.           After

careful review, we affirm.

        We previously summarized the factual history of this case in a previous

appeal:

        On December 3, 2009, at approximately 3:19 P.M., [Baker’s]
        wife, Linda Baker, and a friend, Thomas Dougherty, exited the
        Brighton Hot Dog Shoppe located in the East Rochester Shopping
        Plaza along State Route 65 in East Rochester Borough, after
        having met for coffee. [Linda Baker] and [Dougherty] had
        become acquainted while both were patients in the mental
        health unit of the Heritage Valley Health System-Beaver and had
____________________________________________


*
    Former Justice specially assigned to the Superior Court.
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     maintained contact after being discharged. They proceeded to
     their respective vehicles in the parking lot and [Dougherty]
     pointed out damage to [Linda Baker's] automobile. As they
     conversed near the vehicles, a white car suddenly arrived at
     their location. [Baker] exited the vehicle and approached them
     with a firearm in hand. Without warning, he fired two rounds into
     the chest of [Dougherty] while saying, "this is what you get for
     fucking my wife", and discharged one round into the chest of
     [Linda Baker]. [Baker] withdrew to the white vehicle for a few
     moments, returned again to the area where [Dougherty] was
     lying on the pavement writhing from the initial two shots, and
     fired two additional rounds into [Dougherty's] chest area. [Linda
     Baker] was also lying on the parking lot but remained motionless
     and feigned death without being shot again. [Dougherty] died
     and [Linda Baker] was seriously wounded. [Baker] immediately
     telephoned his sister, his two daughters and a friend in Chicago,
     and informed them that he had just killed his wife and [who he
     presumed was] her boyfriend. He then entered the white vehicle
     and departed the area.

     A short time later, [Baker] surrendered at the New Sewickley
     Township Police Department accompanied by his daughter. The
     shootings were witnessed at various stages during the incident
     by 12 people in the area. [Baker] did not deny that he
     committed the shootings but stated that when he saw his wife
     and her friend hugging and kissing, he "snapped." He did not
     remember having a weapon or firing the shots. He recalled
     seeing them lying on the ground and calling his sister, two
     daughters and a friend, telling them that he had shot both
     individuals. [Baker] indicated that he was aware that Dougherty
     was not the individual with whom his wife was engaged in a
     meretricious relationship identified as Jason Fady, another
     person who [Linda Baker] met while being treated at the hospital
     and whose description [Baker] had previously obtained from a
     police officer. [Baker’s] wife denied that [Dougherty] was kissing
     and hugging her while standing in the parking lot.

Commonwealth v. Baker, 1081 WDA 2012, at 1-2 (Pa. Super. May 13,

2013) (unpublished memorandum) (internal citations omitted).

     On February 15, 2011, following a jury trial, Baker was convicted of

third-degree murder, two counts of aggravated assault, and recklessly


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endangering another person.          Baker was acquitted of first-degree murder,

voluntary manslaughter, and attempted murder.1          On April 1, 2011, Baker

was sentenced to an aggregate term of imprisonment of 30 to 60 years. On

appeal, this Court affirmed Baker’s judgment of sentence. Commonwealth

v. Baker, 1081 WDA 2012 (Pa. Super. May 13, 2013).

       On August 11, 2014, Baker filed the instant PCRA petition alleging his

trial counsel, Stephen Colafella, Esquire, provided ineffective assistance of

counsel. On June 23, 2015, the PCRA court issued its notice of its intent to

dismiss Baker’s PCRA petition pursuant to Pa.R.Crim.P. 907.2        On July 28,

2015, Baker timely filed a concise statement of errors complained of on

appeal pursuant to Pa.R.A.P. 1925(b). He raises the following issues on

appeal:

       [Baker] has alleged the following deficiencies of trial counsel to
       establish the ineffectiveness of counsel at trial:

       1.    Counsel failed to file a motion to suppress the oral
       statements made by the appellant upon his surrender to the
       police following the shooting[.]
____________________________________________


1
   18 Pa.C.S. § 2502(c), 18 Pa.C.S. §§ 2702(a)(1) and 2702(a)(4), 18
Pa.C.S. § 2705, 18 Pa.C.S. § 2501(a), 18 Pa.C.S. § 2503, 18 Pa.C.S. §§
901(a) and 2501(a), respectively.
2
  The PCRA court’s dismissal was docketed as “Order Denying Post Sentence
Motion Pursuant to Pa.R.Crim.P 720(B)(3).” However, the order correctly
states the following:       And now, this 23rd day of June, 2015, upon
consideration of the petitioner’s petition for post-conviction collateral
relief, after hearing thereon, it is hereby ordered and directed that the
petitioner’s petition is denied.” PCRA Order, June 23, 2015, at 1 (emphasis
added).



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      2. Trial counsel presented no character testimony on behalf of
      the appellant and did not provide legally sufficient reasons for
      the failure to do so[.]

      3. Trial counsel failed to request the trial court for a jury
      instruction on the elements of involuntary manslaughter when
      the evidence supports a possible find of reckless or grossly
      negligent conduct.

Brief of Appellant, at 2-3.

      Our standard of review regarding a PCRA court's order is whether the

determination of the PCRA court is supported by the evidence of record and

is free of legal error. Commonwealth v. Garcia, 23 A.3d 1059 (Pa. Super.

2011). It is well settled that any and all PCRA petitions must be filed

within one year of the date on which the petitioner’s judgment

became final, unless one of the three statutory exceptions applies. Id. at

1061-62. These exceptions 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

      (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), (ii), (iii). A judgment becomes final at the

conclusion of direct review, including discretionary review in the Supreme


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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).   A

PCRA petition invoking one of these three exceptions must be filed within 60

days of the date the claims could have been presented.          42 Pa.C.S.A. §

9545(b)(2).

      This Court affirmed Baker’s judgment of sentence on May 13, 2013.

Baker, supra. Baker did not file a petition for allowance of appeal to our

Supreme Court, and thus Baker’s judgment of sentence became final on

June 13, 2013. See 42 Pa.C.S.A. § 9545(b)(3); Pa.R.A.P. 903. Therefore,

Baker had one year, or until July 13, 2014, to file a petition under the PCRA.

However, Baker did not file the instant petition until August 11, 2014, and

thus his petition is facially untimely.   See Commonwealth v. Boyd, 923

A.2d 513, 515 (Pa. Super. 2007) (defendant’s petition for relief filed

pursuant to PCRA was untimely, where petition was filed more than one year

from date defendant’s judgment became final). Moreover, Baker does not

attempt to explain whether his petition falls under one of the three statutory

exceptions to the PCRA. Garcia, supra. We find Baker has failed to comply

with the PCRA’s timeliness requirement, and thus, the trial court correctly

dismissed Baker’s petition. See Boyd, supra (if PCRA petition is untimely

filed, court lacks jurisdiction to address claims contained therein).

      Order affirmed.




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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 9/8/2017




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