J-S17028-17


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA                        IN THE SUPERIOR COURT OF
                                                          PENNSYLVANIA
                          Appellee

                     v.

TROY BAYLOR

                          Appellant                    No. 1233 EDA 2016


            Appeal from the PCRA Order entered March 28, 2016
            In the Court of Common Pleas of Philadelphia County
              Criminal Division at No: CP-51-CR-0007889-2009


BEFORE: OLSON, STABILE, and MUSMANNO, JJ.

MEMORANDUM BY STABILE, J.:                               FILED MAY 17, 2017

      Appellant, Troy Baylor, appeals from the March 28, 2016 order

reinstating a December 15, 2014 order entered in the Court of Common

Pleas of Philadelphia County, denying Appellant’s petition for collateral relief

pursuant to the Post Conviction Relief Act (“PCRA”), 42 Pa.C.S.A. §§ 9541-

9546. Following review, we affirm.

      As   this   Court   explained   in   its   memorandum   opinion   affirming

Appellant’s judgment of sentence:

      Over a four-year period from 2004 to 2008, Appellant and his
      co-conspirators were involved in an elaborate scheme that
      involved the fraudulent transfer of real property in the City and
      County of Philadelphia. They forged documents that ostensibly
      permitted their bearers to enter vacant houses and actually sold
      homes to which they did not have title.         The buyers paid
      anywhere from $100 to $1,000 to gain entrance to the houses,
      and then tendered additional sums for the purchase of the
      homes and receipt of the notarized deeds to the property. The
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       deeds proved to be fake and the sales were not authorized by
       the lawful owners.

       Appellant was tried with two co-defendants; twelve other co-
       conspirators pled guilty. Following Appellant’s conviction and
       sentencing, he filed a post-sentence motion that was denied
       without a hearing on May 26, 2010. Appellant timely appealed
       on June 15, 2010, but that appeal was dismissed. This Court
       reinstated Appellant’s appeal on September 27, 2010, and on
       November 23, 2010, Appellant complied with an order to file a
       Pa.R.A.P. 1925(b) concise statement of matters complained of
       on appeal. The trial court filed its Rule 1925(a) opinion on April
       21, 2011.

Commonwealth v. Baylor, 1592 EDA 2010, unpublished memorandum

(Pa. Super. filed May 23, 2012).           Of note is the fact Appellant ultimately

pursued his direct appeal pro se; that this Court recognized he was entitled

to counsel on direct appeal; and that the trial court determined, after a

Grazier1 hearing, that Appellant’s request to proceed pro se on appeal was

knowing, intelligent, and voluntary.           Id. at 1.   Also of note is the fact

Appellant raised six issues on direct appeal, including sufficiency of evidence

with respect to his various convictions, including specifically his conviction

for the crime of corrupt organizations. Id. at 3 (quoting Appellant’s Brief at

4-10).    This Court determined that the evidence was sufficient to support

Appellant’s corrupt organizations. Id. at 5-7.

       On April 2, 2013, Appellant filed a timely pro se PCRA petition,

followed by supplemental petitions on May 6, July 15, and November 25,

____________________________________________


1
    Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).



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2013. Counsel was appointed and once again Appellant sought to proceed

pro se, a request granted following another Grazier hearing.         The PCRA

court dismissed Appellant’s petition without a hearing and Appellant filed a

pro se appeal to this Court.        On January 20, 2016, we remanded for

appointment of appellate counsel. The PCRA court appointed counsel and,

on March 28, 2016, reinstated its December 15, 2014 order dismissing

Appellant’s PCRA petition.     Appointed counsel then filed the instant appeal

and a Rule 1925(b) statement contending the PCRA court erred in dismissing

Appellant’s petition without a hearing “even though [Appellant] properly

pled, and could have proven, cause for relief as appellate counsel was

ineffective for failing to raise the meritorious issue on appeal that there was

insufficient evidence to sustain the guilty verdicts.” Appellant’s Rule 1925(b)

Statement, 5/18/16, at 1.

         The briefing schedule issued by this Court required that Appellant file

his brief on or before July 18, 2016. Appellant did not seek an extension but

simply filed a late brief on August 16, 2016. Clearly, the brief was untimely

filed.    See Pa.R.A.P. 2185(a)(1).     However, the Commonwealth did not

object.     In fact, despite securing two extensions of time within which to

submit its brief, the Commonwealth did not file an appellate brief.

Therefore, in spite of the untimeliness of Appellant’s brief, we elect to

address the appeal in accordance with our discretion under Pa.R.A.P. 105(a).




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See AmerisourceBergen Corp. v. Doe, 81 A.3d 921, 923 n. 1 (Pa. Super.

2013).

      This Court has explained:

      In reviewing the propriety of a PCRA court’s order dismissing a
      PCRA petition, we are limited to determining whether the PCRA
      court’s findings are supported by the record and whether the
      order in question is free of legal error. The PCRA court’s findings
      will not be disturbed unless there is no support for the findings in
      the certified record. Moreover, there is no absolute right to an
      evidentiary hearing on a PCRA petition, and if the PCRA court
      can determine from the record that no genuine issues of material
      fact exist, then a hearing is not necessary. A reviewing court
      must examine the issues raised in the PCRA petition in light of
      the record in order to determine whether the PCRA court erred in
      concluding that there were no genuine issues of material fact
      and in denying relief without an evidentiary hearing.

Commonwealth v. Springer, 961 A.2d 1262, 1264 (Pa. Super. 2008)

(internal   quotations,   citations,   and   alterations   omitted);   see   also

Commonwealth v. Baumhammers, 92 A.3d 708, 726 (Pa. 2014) (“To

obtain reversal of a PCRA court’s summary dismissal of a petition, an

appellant must show that he raised a genuine issue of fact which, if resolved

in his favor, would have entitled him to relief.”).

      Here, the PCRA court determined that Appellant was “attempt[ing] to

revive a previously litigated claim by couching it in terms of an ineffective

assistance of counsel claim.”          PCRA Court Opinion, 6/26/16, at 2.

“Generally, a PCRA petition cannot obtain post-conviction review of claims

that were previously litigated by alleging ineffectiveness of prior counsel and

presenting new theories to support the previously litigated versions of the


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claims.”   Id. (citations omitted).   As the PCRA court correctly recognized,

“Under the PCRA, a claim is previously litigated if, inter alia, the highest

appellate court in which the petitioner could have had review as a matter of

right has ruled on the merits of the issue.”        Id. (citing 42 Pa.C.S.A.

§ 9545(a)(2)).

      The PCRA court noted:

      [Appellant’s counsel] filed a post-sentence motion wherein he
      argued, inter alia, that there was insufficient evidence to sustain
      the jury’s verdict of guilt.       He also filed a Rule 1925(b)
      Statement raising this argument. Furthermore, while his appeal
      was still pending before the Superior Court, Appellant filed a
      motion to proceed pro se, which was granted after a Grazier
      hearing. Appellant thereafter filed three pro se appellate briefs
      wherein he argued that the evidence was insufficient to sustain
      his convictions. The Superior Court held that the evidence was
      sufficient to support each of Appellant’s convictions. . . .
      Therefore, Appellant’s claim that counsel was ineffective for
      failing to argue on direct appeal that there was insufficient
      evidence to sustain the jury’s verdict of guilt has not only been
      previously litigated, but is also without merit.

Id. at 3-4 (citation omitted).

      The record reveals that Appellant’s counsel did raise sufficiency in a

post sentence motion and in a Rule 1925(b) statement, and that Appellant

himself briefed the issue after being permitted to proceed pro se.          We

conclude that the PCRA court’s findings are supported by the record and we

find no legal error in its determination that a hearing was not necessary to

establish that Appellant’s claim was previously litigated and wholly without

merit.

      Order affirmed.

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Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 5/17/2017




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