COMMONWEALTH OF PENNSYLVANIA v. ANDRE STRUM
No. 173 EDA 2021
IN THE SUPERIOR COURT OF PENNSYLVANIA
DECEMBER 09, 2021
NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37; J-S36036-21
BEFORE: LAZARUS, J., KING, J., AND COLINS, J.*:
MEMORANDUM BY COLINS, J.:
FILED DECEMBER 09, 2021
Appellant, Andre Strum, appeals pro se from the order denying his fifth petition filed pursuant to the Post Conviction Rеlief Act (PCRA),
A prior panel of this Court recited the factual and procedural background of this case as follows:
At trial, the Commonwealth presented evidence that in the morning of May 20, 1995, several people, including [Appellant], Marc Johnson (“Johnson“), and the victim, Robert Malcom (“Junior“), were gathered at 41 North 62nd Street in Philadelphia, a house belonging to Gary Gunther and Bernice Philips. [Appellant] was armed with a handgun and Johnson a sawed-off shotgun.
After both Gunther and Phillips went to the second floor of the house, [Apрellant] confronted Junior, a fellow drug dealer, and conveyed verbal demands to relinquish valuables. In response to Junior‘s failure to comply, [Appellant], and shortly thereafter Johnson,
began beating him. [Appellant] then shot Junior four times. Then, after a series of subsequent misfires, [Appellant] and Johnson began pistol-whipping Junior. After a mutual friend intervеned, [Appellant] and Johnson fled the scene. Junior died shortly thereafter. The Commonwealth also presented the testimony of Paul Franklin, to whom [Appellant] confessеd, as well as evidence of [Appellant‘s] two-year flight to three different states under assumed identities.
PCRA Court Opinion, 11/10/16, at 2–3.
A jury convicted Appellant of first-degree murder, robbery, criminal conspiracy, and possession of an instrument of crime (“PIC“)1 on December 18, 1997. On July 7, 1998, Appellant was sentenced to life imprisonment for murder, a consecutive term of imprisonment of fivе to ten years for the robbery conviction, and a concurrent term of incarceration of four to eight years for criminal conspiracy; no further penalty was imрosed for PIC. This court affirmed the judgment of sentence on November 29, 1999. Commonwealth v. Strum, 750 A.2d 377, 3453 PHL 1998 (Pa. Super. 1999) (unpublished memorandum). Appellant did not file a petition for allowance of appeal to the Pennsylvania Supreme Court.
Appellant, pro se, filed his first PCRA petition on December 15, 2000, and appointed counsel filed an amended petition on January 17, 2003. The PCRA court denied the petition on July 10, 2003, this Court affirmed on February 17, 2005, and our Supreme Court denied Appellant‘s petition for allowance of appeal on September 14, 2005. Commonwealth v. Strum, 873 A.2d 772, 2413 EDA 2003 (Pa. Super. 2005) (unpublished memorandum), appeal denied, 882 A.2d 1006, 112 EAL 2005 (Pa. 2005).
On September 21, 2005, Appellant filed a pro se petition for writ of habeas corpus in federal court. The district court dеnied the petition on May 7, 2007, and the Third Circuit Court of Appeals denied a certificate of appealability on October 4, 2007. Strum v. Palakovich, 2007 WL 1366891 (E.D.Pa. 2007).
Commonwealth v. Strum, 2277 EDA 2016, 2017 WL 3189207, at *1–2 (Pa. Super. July 27, 2017) (citations to the record omitted). On October 20, 2015, Appellant filеd pro se his fourth PCRA petition, which the PCRA court dismissed on June 21, 2016. On July 27, 2017, this Court affirmed. Id. Appellant did not seek allowance of appeal with our Supreme Court.
On July 13, 2018, Appellant filed the instant pro se PCRA petition, his fifth. He acknowledged his рetition was facially untimely but claimed that it fell within the exceptions to the PCRA‘s time-bar for a newly-discovered fact and a newly-recognized, retroactively-appliсable constitutional right, citing McCoy v. Louisiana, 138 S.Ct. 1500 (2018).1 PCRA Petition, 7/13/2018, at 3, 7. Appellant claimed trial counsel was ineffective for stipulating to evidence
On September 18, 2020, pursuant to Pa.R.Crim.P. 907, the PCRA court filеd notice of its intent to dismiss the petition.2 Appellant filed a response on October 6, 2020. The PCRA court dismissed the petition as untimely filed on December 9, 2020, and Appellant timely filed this appeal.3 The PCRA court did not order Appellant to file a statement pursuant to Pa.R.A.P. 1925(b) and none was filed. The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a).
On appeal, Appellant presents the following issues for our review:
- Whether the court below abused its discretion by ruling that [A]ppellant failed to invoke an exception to the PCRA‘s time-bar?
- Whether the stringent standard of review used by the court below allowed a manifest injustice to occur in this case?
Appellant‘s Brief at v (suggested answers omitted).
We begin by determining whether Appellant‘s PCRA petition was timеly filed as this implicates our jurisdiction. Commonwealth v. Monaco, 996 A.2d 1076, 1079 (Pa. Super. 2010) (“Pennsylvania law makes clear no court has jurisdiction to hear an untimely PCRA petition.“). A petition for relief under the PCRA, including a second or subsequent petition, must be filed within one year of the date the judgment of sentence is final unless the petition alleges, and the petitioner proves, that an exception to the time for filing the petition is met, and that the claim was raised within 60 days4 of the date on which it became available.
(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 Supremе 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.
As nоted above, Appellant concedes his petition is facially untimely and contends that he properly invoked the exception found at subsection 9545(b)(1)(iii), by relying upon the United States Supreme Court‘s decision in McCoy.5 Appellant‘s Brief at 6-8, 18-22. In McCoy, the Court
held that a capital defendant had the right to direct counsel not to admit the defendant‘s guilt during the penalty phase of his trial, despite counsel‘s reasonable belief that admitting guilt was the most effective tactic to save the defendant from being sentenced to death. The Court further held that trial counsеl‘s refusal to adhere to the defendant‘s direction in this regard constituted structural error necessitating a new trial.
Commonwealth v. Williams, 196 A.3d 1021, 1036 (Pa. 2018) (Wecht, J. concurring).
Even assuming arguendo that this decision constitutes recognition of a new constitutional right, Appellant has not established that the U.S. Supreme
As Appellant‘s petition does not meet any of the PCRA timeliness exceptions, the PCRA court was without jurisdiction to reach the merits of the petition. Thus, Appellant‘s petition was properly dismissed as untimely filed, and no relief is due.
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/9/2021
*Retired Senior Judge assigned to the Superior Court.