J-S03021-17

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF

PENNSYLVANIA

Appellee

v.

DEMETRIUS BAILEY

Appellant No. 764 WDA 2016

Appeal from the PCRA Order dated April 20, 2016

In the Court of Common Pleas of Allegheny County

Criminal Division at No(s): CP-02-CR-0006409-1994

 CP-02-CR-0008102-1994

BEFORE: OLSON, J., SOLANO, J., and STRASSBURGER, J.*

MEMORANDUM BY SOLANO, J.: FILED APRIL 7, 2017

Appellant, Demetrius Bailey, appeals pro se from the order dismissing 

as untimely his sixth petition filed pursuant to the Post Conviction Relief Act. 

42 Pa.C.S. §§ 9541-46. We affirm.

On December 20, 1994, a jury convicted Appellant of second-degree 

murder in the shooting death of Michael Sayles. That same day, the trial 

court sentenced Appellant to mandatory life imprisonment. Appellant filed a 

direct appeal. This Court affirmed Appellant’s judgment of sentence on 

November 20, 1995. Commonwealth v. Bailey, 673 A.2d 398 (Pa. Super. 

1995) (unpublished memorandum). Appellant filed a petition for allowance 

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* Retired Senior Judge assigned to the Superior Court.
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of appeal, which the Supreme Court denied on April 23, 1996. 

Commonwealth v. Bailey, 675 A.2d 1241 (Pa. 1996).

Thereafter, Appellant filed several petitions in which he sought postconviction relief. Most recently, on November 5, 2014, Appellant filed the 

pro se PCRA petition presently before us. The PCRA court issued notice of its 

intention to dismiss this petition pursuant to Pa.R.Crim.P. 907, and 

dismissed the petition on April 20, 2016. This timely appeal followed.

Appellant presents three issues for review:

1. Whether the abandonment of petition by state appellate 

counsel in the first PCRA violated petitioner’s constitutional 

right to effective assistance of counsel on PCRA, thus, 

warranting a reinstatement of his appellate rights?

2. Did the imposition of petitioner’s life without parole sentence 

for a homicide offense violate the Eighth and Fourteenth 

Amendments prohibition against cruel and unusual 

punishments under the United States Constitution and Article 

1 § 13 of the Pennsylvania Constitution?

3. Whether the lower court is in violation of petitioner’s due 

process and equal protection rights for failure to send a copy 

of notice of intent to dismiss so petitioner can respond and 

failure to address supplemental amended PCRA and failure to 

furnish the Superior Court with complete record making 

petitioner’s appeal process ineffective.

Appellant’s Brief at 3. 

 “In reviewing the denial of PCRA relief, we examine whether the PCRA 

court’s determinations are supported by the record and are free of legal 

error.” Commonwealth v. Roney, 79 A.3d 595, 603 (Pa. 2013) (quoting 

Commonwealth v. Spotz, 18 A.3d 244, 259 (Pa. 2011)). The PCRA court’s 

findings will not be disturbed unless there is no support for the findings in 
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the certified record. Commonwealth v. Carr, 768 A.2d 1164, 1166 (Pa. 

Super. 2001). Moreover, a PCRA court may decline to hold a hearing on the

petition if the PCRA court determines that petitioner’s claim is frivolous and 

without support in either the record or from other evidence. 

Commonwealth v. Jordan, 772 A.2d 1011, 1104 (Pa. Super. 2001).

To be eligible for post-conviction relief, a petitioner must plead and 

prove by a preponderance of the evidence that his conviction or sentence 

resulted from one or more of the enumerated errors or defects in 42 Pa.C.S. 

§ 9543(a)(2). Commonwealth v. Carpenter, 725 A.2d 154, 160 (Pa. 

1999). In addition, the petition must be timely, as the timeliness of a postconviction petition is jurisdictional. Commonwealth v. Hernandez, 79 

A.3d 649, 651 (Pa. Super. 2013). Generally, a petition for relief under the 

PCRA, including a second or subsequent petition, must be filed within one 

year of the date the judgment is final unless the petition alleges, and the 

petitioner proves, that an exception to the time for filing the petition, set 

forth at 42 Pa.C.S. Sections 9545(b)(1)(i), (ii), and (iii), is met. 42 Pa.C.S. 

§ 9545.1 A PCRA petition invoking one of these statutory exceptions must 

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1 The exceptions to the timeliness requirement are:

(i) the failure to raise the claim previously was the result of 

interference of 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.

(Footnote Continued Next Page)
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“be filed within 60 days of the date the claims could have been presented.” 

See Hernandez, 79 A.3d 651-652 (citations omitted); see also 42 Pa.C.S. 

§ 9545(b)(2). The petitioner seeking to file an untimely PCRA petition bears 

the burden to allege and prove that one of the timeliness exceptions applies. 

Commonwealth v. Whitehawk, 146 A.3d 266 (Pa. Super. 2016).

Relative to the underlying appeal, this Court, in a prior decision, 

determined that Appellant’s judgment of sentence became final on July 22, 

1996, and Appellant “had one year from this date to file any petition for 

collateral relief unless he pleaded and proved a timing exception applied.” 

Commonwealth v. Bailey, 984 A.2d 1006 (Pa. Super. 2009) (unpublished 

judgment order). Because Appellant did not file the petition at issue until 

December 4, 2014, it is untimely unless he has satisfied his burden of 

pleading and proving that one of the enumerated exceptions applies. See

Hernandez, 79 A.3d at 651.

(Footnote Continued) _______________________

(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).
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In his petition, Appellant fails to explain why his untimely PCRA 

petition should be exempted from the one-year filing period. Within his 

brief, Appellant summarizes his argument as follows:

Appella[nt] is challenging that the abandonment of appellate 

counsel violated his constitutional rights to counsel in his first 

PCRA denying him ineffective assistance of counsel in which he is 

entitled to reinstatement of his appellate rights. The court 

sentence[d] petitioner to an illegal sentence base[d] on 

unconstitutional statutes and laws and that the Juvenile Act 

applies to his LWOP [that is, his sentence of life without parole] 

in violation of the Eighth Amendment that a child under (21) 

years is a delinquent and entitled to a hearing in juvenile court 

before adult court under a new substantial rule of constitutional 

law made retroactive.

Appellant’s Brief at 6.

In the body of his argument, Appellant generally claims that he is 

invoking the exceptions to the time bar of the PCRA at Section 9545(b)(ii) 

(newly discovered evidence), and (iii) (newly recognized constitutional 

right). Appellant’s Brief at 7. He also states that his “Nunc Pro Tunc 

[petition] was filed within the statutory time restraints of (60) days set forth 

in §9545(b)(2).” Id. Appellant then references Montgomery v. 

Louisiana, 136 S. Ct. 718 (2016),2and claims that his life-without-parole 

sentence is unconstitutionally invalid. Appellant’s Brief at 8. Finally, 

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2 Miller v. Alabama, 132 S. Ct. 2455 (2012), held that sentences of 

mandatory life imprisonment without parole imposed upon juveniles who 

were under the age of 18 at the time they committed murder were 

unconstitutional; Montgomery v. Louisiana held that the application of 

Miller v. Alabama is retroactive. 
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Appellant contends that the PCRA court erred by failing to send him a copy 

of the Rule 907 notice of intent to dismiss Appellant’s petition and failure to 

file a Rule of Appellate Procedure 1925(a) opinion. Id. at 16.

Appellant’s argument is undeveloped and meritless. First, he fails to 

articulate or specify how and when, within the statutorily prescribed 60 

days, he learned that he was entitled to relief which fell within an exception 

to the PCRA’s time bar. We note that allegations of ineffective assistance of 

counsel will not overcome the jurisdictional timeliness requirements of the 

PCRA. Commonwealth v. Wharton, 886 A.2d 1120, 1127 (Pa. 2005). 

With regard to Appellant’s reference to Montgomery v. Louisiana and his 

life without parole sentence, Appellant was 20 years old when he committed 

murder.3 The right of juveniles not to be sentenced to lifetime incarceration 

that was at issue in Montgomery does not apply to individuals who were 18 

or older at the time they committed murder. See Commonwealth v. 

Furgess, 149 A.3d 90 (Pa. Super. 2016). Further, any deficiencies in the 

PCRA court’s service of a Rule 907 notice or failure to file a Pa.R.A.P. 

1925(a) opinion are not reversible error when the record is clear that the 

petition is untimely. See, e.g., Commonwealth v. Ziegler, 148 A.3d 849 

(Pa. Super. 2016).

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3 Appellant was born on July 9, 1973, and fatally shot Michael Sayles on 

May 5, 1994. Criminal Complaint, 5/5/94.
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Because Appellant’s most recent petition is untimely and fails 

sufficiently to plead and prove an exception to the PCRA time bar, Appellant 

is not entitled to relief. We therefore affirm the order dismissing Appellant’s 

PCRA petition.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 4/7/2017