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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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