J-S73043-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
STEVEN MYKEL BAILEY
Appellant No. 677 WDA 2016
Appeal from the Order April 18, 2016
In the Court of Common Pleas of Allegheny County
Criminal Division at No(s): CP-02-CR-0008915-2004
CP-02-CR-0011831-2004
BEFORE: FORD ELLIOTT, P.J.E., LAZARUS, J., and JENKINS, J.
MEMORANDUM BY JENKINS, J.: FILED OCTOBER 25, 2016
Steven Mykel Bailey (“Appellant”) appeals from the order entered in
the Allegheny County Court of Common Pleas, which dismissed his petition
filed for relief pursuant to the Post Conviction Relief Act (“PCRA”). 1 We
affirm.
The relevant facts and procedural history of this appeal are as follows.
On January 10, 2005, a jury convicted Appellant of first-degree murder,
violating the Uniform Firearms Act, carrying a firearm without a license, and
four counts of recklessly endangering another person. On March 15, 2005,
the court sentenced Appellant to life imprisonment for first-degree murder
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1
42 Pa.C.S. §§ 9541-9546.
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and concurrent sentences of one (1) to two (2) years’ incarceration for each
of his other convictions. On April 17, 2007, this Court affirmed Appellant’s
judgment of sentence. On December 20, 2007, our Supreme Court denied
his petition for allowance of appeal. Appellant did not file a petition for a
writ of certiorari with the Supreme Court of the United States.
On April 23, 2008, Appellant filed a pro se PCRA petition. The PCRA
court appointed counsel, who filed an amended PCRA petition on October 1,
2008. On January 29, 2009, the PCRA court denied Appellant’s petition.
This Court affirmed the order denying Appellant’s PCRA petition on October
10, 2010. On March 30, 2011, our Supreme Court denied Appellant’s
petition for allowance of appeal. On April 19, 2011, Appellant filed another
PCRA petition, which he subsequently withdrew.
On June 10, 2015, Appellant filed the present PCRA petition, his third.
The PCRA court appointed counsel, who filed an amended PCRA petition on
November 9, 2015. After conducting a hearing on January 14, 2016, the
PCRA court denied Appellant’s petition on April 18, 2016. On May 10, 2016,
Appellant timely filed a notice of appeal. The PCRA court did not order, and
Appellant did not file, a concise statement of errors complained of on appeal
pursuant to Pa.R.A.P. 1925(b). On May 18, 2016, pursuant to Pa.R.A.P.
1925(a), the PCRA court issued a statement adopting its April 18, 2016
opinion denying Appellant’s PCRA petition as its reasons for denying
Appellant relief.
Appellant raises the following issue for our review:
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DID THE LOWER COURT ERR AND ABUSE ITS DISCRETION
BY DENYING [APPELLANT’S] PETITION FOR POST-
CONVICTION COLLATERAL RELIEF FROM A CONVICTION
OF MURDER OF THE FIRST DEGREE AFTER [APPELLANT]
PRODUCED AN AFTER-DISCOVERED WITNESS WHO
TESTIFIED AT AN EVIDENTIARY HEARING THAT THE
VICTIM HAD REACHED FOR A GUN PRIOR TO THE
SHOOTING INCIDENT IN THIS CASE?
Appellant’s Brief at 4.
Appellant claims that he is entitled to collateral relief pursuant to 42
Pa.C.S. § 9543(a)(2)(vi) because of exculpatory evidence, specifically the
affidavit of Avid Nalls, that was not available at the time of trial. He claims
that Mr. Nalls would testify that he saw the victim reach for a gun before
Appellant shot him, and that this testimony would change the outcome of his
jury trial.
Before we address the merits of Appellant’s claim, we must determine
whether his PCRA petition was timely. The timeliness of a PCRA petition
implicates the jurisdiction of both this Court and the PCRA court.
Commonwealth v. Williams, 35 A.3d 44, 52 (Pa.Super.2011), appeal
denied, 50 A.3d 121 (Pa.2012). “Pennsylvania law makes clear that no
court has jurisdiction to hear an untimely PCRA petition.” Id. To “accord
finality to the collateral review process[,]” the PCRA “confers no authority
upon [appellate courts] to fashion ad hoc equitable exceptions to the PCRA
timebar[.]” Commonwealth v. Watts, 23 A.3d 980, 983 (Pa.2011). With
respect to jurisdiction under the PCRA, this Court has further explained:
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The most recent amendments to the PCRA...provide a
PCRA petition, including a second or subsequent petition,
shall be filed within one year of the date the underlying
judgment becomes final. A judgment is deemed 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. Monaco, 996 A.2d 1076, 1079 (Pa.Super.2010)
(citations and quotations omitted), appeal denied, 20 A.3d 1210 (Pa.2011);
see also 42 Pa.C.S. § 9545(b). This Court may review a PCRA petition filed
more than one year after the judgment of sentence becomes final only if the
claim falls within one of the following three statutory exceptions, which the
petitioner must plead and prove:
(i) the failure to raise the claim 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. § 9545(b)(1). These “exceptions to the time bar must be pled in
the PCRA petition, and may not be raised for the first time on appeal.”
Commonwealth v. Burton, 936 A.2d 521, 525 (Pa.Super.2007). Further,
if a petition pleads one of these exceptions, the petition will not be
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considered unless it is “filed within 60 days of the date the claim could have
been presented.” 42 Pa.C.S. § 9545(b)(2).
Here, Appellant’s judgment of sentence became final on March 19,
2008, when the time period during which he could have filed a petition for a
writ of certiorari with the Supreme Court of the United States expired. See
42 Pa.C.S. § 9545(b)(3); U.S. Sup. Ct. R. 13. Accordingly, he had until
March 19, 2009 to file a timely PCRA petition. See 42 Pa.C.S. § 9545(b)(1).
His present petition, filed June 10, 2015, is patently untimely. Thus, we
must determine whether he has pled and proved any of the exceptions to
the PCRA time-bar in his petition.
To invoke exception 42 Pa.C.S. § 9545(b)(ii) of the PCRA time-bar,
Appellant claims in his PCRA petition that he did not know that Mr. Nalls saw
the victim reaching for the gun and he could not have ascertained this fact
through the exercise of due diligence. Further, he claims he brought his
petition within 60 days of learning that Mr. Nalls witnessed the event.
To prove that he qualified for the timeliness exception to the PCRA
time-bar, Appellant attached the affidavit of Mr. Nalls to his petition. The
affidavit states that Mr. Nalls was exiting a pizza shop directly across the
street from the shooting when he witnessed the victim reach for a gun, and
that he immediately exited the scene. If Mr. Nalls’ affidavit is true, Appellant
would not have known that Mr. Nalls was at the scene of the crime and that
he witnessed the victim reach for the gun, nor could he have ascertained
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this through the exercise of due diligence. Mr. Nalls testified that he told
Appellant about this observation in the middle of April 2015, and he signed
the affidavit on May 21, 2015. N.T., 1/14/2016, at 15. Because Appellant
filed his PCRA petition within 60 days of these events, he has satisfied the
Section 9545(b)(ii) exception to the PCRA time-bar, and we proceed to the
merits of his claim.
Our standard of review regarding PCRA relief is well-settled. “[W]e
examine whether the PCRA court’s determination is supported by the record
and free of legal error.” Commonwealth v. Fears, 86 A.3d 795, 803
(Pa.2014) (internal quotation marks and citation omitted). “The scope of
review is limited to the findings of the PCRA court and the evidence of
record, viewed in the light most favorable to the prevailing party at the trial
level.” Commonwealth v. Spotz, 84 A.3d 294, 311 (Pa.2014) (citation
omitted). “It is well-settled that a PCRA court’s credibility determinations
are binding upon an appellate court so long as they are supported by the
record.” Commonwealth v. Robinson, 82 A.3d 998, 1013 (Pa.2013)
(citation omitted). However, this Court reviews the PCRA court’s legal
conclusions de novo. Commonwealth v. Rigg, 84 A.3d 1080, 1084
(Pa.Super.2014) (citation omitted).
“To obtain relief based upon newly-discovered evidence under the
PCRA, Appellant must establish that: (1) the evidence has been discovered
after trial and it could not have been obtained at or prior to trial through
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reasonable diligence; (2) the evidence is not cumulative; (3) it is not being
used solely to impeach credibility; and (4) it would likely compel a different
verdict.” Commonwealth v. Washington, 927 A.2d 586, 595–96
(Pa.2007).
Appellant argues that the introduction of Mr. Nalls testimony would
have compelled a different verdict because it would have supported a self-
defense theory. He claims that if the jury were instructed on the theory of
self-defense, that it would not have convicted him of first-degree murder.
We disagree.
The theory of self-defense is governed by the following statute:
§ 505. Use of force in self-protection
(a) Use of force justifiable for protection of the
person.--The use of force upon or toward another person
is justifiable when the actor believes that such force is
immediately necessary for the purpose of protecting
himself against the use of unlawful force by such other
person on the present occasion.
(b) Limitations on justifying necessity for use of
force.--
* * *
(2) The use of deadly force is not justifiable under this
section unless the actor believes that such force is
necessary to protect himself against death, serious bodily
injury, kidnapping or sexual intercourse compelled by force
or threat; nor is it justifiable if:
(i) the actor, with the intent of causing death or serious
bodily injury, provoked the use of force against himself in
the same encounter; or
(ii) the actor knows that he can avoid the necessity of
using such force with complete safety by retreating, except
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the actor is not obliged to retreat from his dwelling or
place of work, unless he was the initial aggressor or is
assailed in his place of work by another person whose
place of work the actor knows it to be.
18 Pa.C.S. § 505.
Additionally,
[T]o establish the defense of self-defense it must be shown
that: a) the slayer was free from fault in provoking or
continuing the difficulty which resulted in the slaying; b)
that the slayer must have reasonably believed that he was
in imminent danger of death or great bodily harm, and
that there was a necessity to use such force in order to
save himself therefrom; and c) the slayer did not violate
any duty to retreat or to avoid the danger.
If there is any evidence from whatever source that will
support these three elements then the decision as to
whether the claim is a valid one is left to the jury and the
jury must be charged properly thereon by the trial court.
Commonwealth v. Hansley, 24 A.3d 410, 421 (Pa.Super.2011) (emphasis
and internal citations omitted).
Here, Appellant testified that on the day of the murder, he received a
phone call from his girlfriend’s cell phone. He heard the victim screaming
“get your man,” his girlfriend screaming “stop hitting me,” and his baby
screaming and hollering in the background. N.T., 1/4-7/2005, at 320.
Appellant drove his vehicle to the area where he thought his family and the
victim would be, picked up his girlfriend and child, and drove them back to
their home. Id. at 321. He did not exit the vehicle, but drove back to the
area where he had last seen the victim, supposedly to discuss why the
victim was harassing Appellant’s family. Id. at 323. Appellant stopped his
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vehicle in front of Bill’s Tavern, the victim came out of the tavern with a
“real mean look on his face,” and reached toward his shirt. Id. at 324-25.
Appellant testified that he saw something shiny and thought the victim was
reaching for his gun. Id. at 325. The victim’s shiny belt buckle was later
introduced into evidence to corroborate Appellant’s testimony. Appellant
then fired two shots “to the left” of the victim from his vehicle. Id. The
victim ran back into the bar and Appellant shot a few more bullets at the bar
“to scare him off” before he drove away from the scene. Id.
One of Appellant’s shots killed the victim. Even if Appellant did not
provoke the slaying, he was in a vehicle and very easily could have
retreated, especially considering the fact that the victim ran away into the
bar. Even if he reasonably believed he was in danger, there was no
necessity to use such deadly force. Thus, the court was not required to give
a justification defense instruction, and it would not have been required to
give such an instruction even if Mr. Nalls testified that the victim had a gun.
Moreover, because Appellant testified that he saw the victim reach for
a gun, and he introduced the victim’s belt buckle into evidence to support
his theory, in addition to failing to compel a different verdict, the testimony
would have been cumulative.
The PCRA court did not find Mr. Nalls to be credible and did not believe
he witnessed the victim reach for the gun. It found that even if Mr. Nalls
was telling the truth, the testimony “would not likely compel a different
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verdict because [Appellant] provoked the situation by seeking out the victim
and [Appellant] had the duty to retreat and walk away.” PCRA Court
Opinion, filed April 18, 2016, at 7.
The PCRA court’s determination is supported by the record and free of
legal error.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 10/25/2016
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