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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. :
:
:
GUSTUS CICERO TAYLOR :
:
Appellant : No. 1716 WDA 2017
Appeal from the PCRA Order Entered September 28, 2017
In the Court of Common Pleas of Allegheny County Criminal Division at
No(s): CP-02-CR-0013932-2004
BEFORE: OLSON, J., McLAUGHLIN, J., and STRASSBURGER*, J.
MEMORANDUM BY McLAUGHLIN, J.: FILED OCTOBER 31, 2018
Gustus Cicero Taylor appeals from the order dismissing as untimely his
petition for relief under the Post-Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-
9546. He claims he was denied a fair and impartial jury; the Commonwealth
committed a Brady1 violation; and trial counsel was ineffective. We affirm.
A jury convicted Taylor of first-degree murder and the trial court
imposed a term of life imprisonment.2 This Court affirmed his judgment of
sentence on February 25, 2008, and Taylor did not file a petition for allowance
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* Retired Senior Judge assigned to the Superior Court.
1 Brady v. Maryland, 373 U.S. 83, 87 (1963) (holding that suppression by
prosecution of evidence favorable to defendant violates due process, where
evidence is material to guilt or punishment).
2 18 Pa.C.S.A. § 2502(a).
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of appeal to our Supreme Court. See Commonwealth v. Taylor, 951 A.2d
1217 (Pa.Super. 2008) (unpublished memorandum).
Taylor filed his first timely pro se PCRA petition in September 2008. The
PCRA court appointed counsel, who filed a Turner/Finley3 letter, contending
that the petition was meritless. The PCRA court dismissed the petition. Taylor
appealed the dismissal but this Court quashed the appeal due to Taylor’s
failure to comply with the Rules of Appellate Procedure. See Commonwealth
v. Taylor, 996 A.2d 16 (Pa.Super. 2010) (unpublished memorandum), appeal
denied, 997 A.2d 1178 (Pa. 2010). Taylor filed the petition giving rise to this
appeal on June 8, 2017, which he styled as a “Petition for Post-Trial Discovery
and Note[s] of Testimony.” The PCRA court treated the petition as a PCRA
petition and issued a notice of intent to dismiss the petition without a hearing.
See Pa.R.Crim.P. 907. The PCRA court later dismissed the petition and this
timely appeal followed.
On appeal, Taylor asserts three issues:
I. Was [Taylor’s] fair and impartial trial by jury violat[ed], which is
guaranteed by Batson v. Kentucky, 106 S.Ct. 1712 [(1986)]?
II. [Taylor] was denied evidence under Brady v. Maryland, 83 S.Ct.
1194 [1963], where, there was evidence withheld by the
Commonwealth that, would have made a difference in the outcome
of [Taylor’s] trial . . . [sic] this was also in violation of the Jencks Act,
18 U.S.C. 3500(b).
____________________________________________
3Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988); Commonwealth
v. Finley, 550 A.2d 213 (Pa.Super. 1988).
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III. The above violations led to, ineffective assistance of counsel under
Strickland v. Washington, 104 S.Ct. 2052 [1984]. There was no
reason for counsel not to investigate all pre-trial allegations in this
matter.
Taylor’s Br. at i.
Our standard of review for the denial of a PCRA petition “is limited to
examining whether the PCRA court’s determination is supported by evidence
of record and whether it is free of legal error.” Commonwealth v. Jordan,
182 A.3d 1046, 1049 (Pa.Super. 2018).
We do not reach the merits of Taylor’s issues because his PCRA petition
was untimely. See Commonwealth v. Smith, --- A.3d ---, 2018 PA Super
211 at *4 (filed July 20, 2018). A timely PCRA petition is one that has been
filed within one year of the date the judgment of sentence became final. See
42 Pa.C.S.A. § 9545(b)(1). “[A] judgment [of sentence] 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.” Commonwealth v. Staton, 184
A.3d 949, 954 (Pa. 2018) (quoting 42 Pa.C.S.A. § 9545(b)(3)).
A petitioner who files a PCRA petition after the one-year deadline must
plead and prove at least one of three time-bar exceptions. These exceptions
are: (1) the failure to raise the claim previously was due to governmental
interference; (2) the facts of the claim were unknown to the petitioner and
could not have been ascertained by due diligence; or (3) a newly recognized
constitutional right that the United States Supreme Court or Pennsylvania
Supreme Court have held to apply retroactively. See 42 Pa.C.S.A. §
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9545(b)(1)(i)-(iii). The petitioner must raise a time-bar exception within 60
days from the date the claim could have first been raised. See 42 Pa.C.S.A. §
9545(b)(2).
Here, Taylor’s judgment of sentence became final on March 26, 2008,
when his time to file a petition for allowance of appeal to our Supreme Court
expired. See Pa.R.A.P. 1113(a). Thus, he had one year from that date to file
a timely petition. The instant petition was filed nine years after the deadline
and therefore the PCRA court lacked jurisdiction to consider the petition unless
one of the three time-bar exceptions applied. See Commonwealth v.
Albrecht, 994 A.2d 1091, 1093 (Pa. 2010). It was Taylor’s burden to plead
and prove one of the time-bar exceptions. See Commonwealth v. Woods,
179 A.3d 37, 43 (Pa.Super. 2017) (petitioner bears burden of pleading and
proving time-bar exception).
Taylor failed to plead or prove any of the time-bar exceptions in his
PCRA petition; he does not even claim an exception in his appellate brief. As
such, we are in agreement with the PCRA court’s decision to dismiss the
petition as untimely. We therefore do not address the merits of Taylor’s
appellate issues and affirm the order of the PCRA court.
Order affirmed.
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/31/2018
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