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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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 coconspirators 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Commonwealth v. Baylor, 1592 EDA 2010, unpublished memorandum 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