Com. v. Strum, A. ( 2021 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37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. :
:
ANDRE STRUM, :
:
Appellant : No. 173 EDA 2021
Appeal from the PCRA Order Dated December 9, 2020
in the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0504651-1997
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 Relief Act (PCRA), 42 Pa.C.S.
§§ 9541–9546. We affirm.
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, [Appellant] 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,
*Retired Senior Judge assigned to the Superior Court.
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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 intervened, [Appellant] and
Johnson fled the scene. Junior died shortly thereafter.
The Commonwealth also presented the testimony of
Paul Franklin, to whom [Appellant] confessed, 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 five 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 imposed 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.
______
1 18 Pa.C.S. §§ 2502, 3701, 903, and 907, respectively.
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 denied 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).
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Appellant, pro se, filed his second PCRA petition on September 29,
2009. The PCRA court dismissed the petition on November 4,
2013; no appeal was filed. Appellant filed his third PCRA petition
on December 2, 2013, which was styled as a petition for writ
of habeas corpus. Following its denial by the PCRA court, this
Court affirmed the denial, and our Supreme Court denied
Appellant’s petition for allowance of appeal on July 15,
2015. Commonwealth v. Strum, 121 A.3d 1117, 1375 EDA
2014 (Pa. Super. 2015) (unpublished memorandum), appeal
denied, 118 A.3d 1108, 245 EAL 2015 (Pa. 2015). Meanwhile, in
federal court, Appellant filed a motion pursuant to Fed.R.Civ.P.
60(b) seeking relief from the denial of his habeas corpus petition
filed seven years earlier. The district court denied the petition on
March 19, 2005, and the Third Circuit Court of Appeals denied a
certificate of appealability on September 2, 2015. Strum v.
Palakovich, 2015 WL 1255907 (E.D.Pa. 2015) (unpublished
memorandum).
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 filed 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 petition 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-applicable 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
1
As discussed infra, there are three exceptions to the PCRA’s one-year time-
bar. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
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involving an unrelated gun at trial, which Appellant claimed amounted to an
admission of guilt on the PIC charge. Id. According to Appellant, the McCoy
Court “found such conduct to be a structural error in violation of the Sixth
Amendment.” Id. at 7.
On September 18, 2020, pursuant to Pa.R.Crim.P. 907, the PCRA court
filed 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:
1. Whether the court below abused its discretion by ruling that
[A]ppellant failed to invoke an exception to the PCRA’s time-bar?
2. 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).
2 The record does not indicate a reason for the two-year delay. We note that
“the PCRA court does have the ability and responsibility to manage its docket
and caseload and thus has an essential role in ensuring the timely resolution
of PCRA matters.” Commonwealth v. Renchenski, 52 A.3d 251, 260 (Pa.
2012).
3 On May 18, 2021, this Court dismissed the instant appeal due to Appellant’s
failure to file a brief. This Court subsequently received Appellant’s application
for an extension of time to file a brief, which was dated April 14, 2021.
Accordingly, we vacated the dismissal order and reinstated the appeal. Order,
5/26/2021.
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“Our standard of review of a PCRA court’s dismissal of a PCRA petition
is limited to examining whether the PCRA court’s determination is supported
by the record evidence and free of legal error.” Commonwealth v.
Whitehawk, 146 A.3d 266, 269 (Pa. Super. 2016).
We begin by determining whether Appellant’s PCRA petition was timely
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. 42 Pa.C.S. § 9545(b). A PCRA petition may be filed beyond
the one-year time period only if the petitioner pleads and proves one of the
following three exceptions:
(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;
4 Effective December 24, 2018, the legislature amended subsection
9545(b)(2) to read: “Any petition invoking an exception provided in paragraph
(1) shall be filed within one year of the date the claim could have been
presented.” See 42 Pa.C.S. § 9545(b)(2) (effective December 24, 2018). The
amendment to subsection 9545(b)(2) only applies to “claims arising on
[December] 24, 2017, or thereafter.” See id., cmt.
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(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)(i)-(iii).
As noted 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 counsel’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
5 Appellant also invokes the newly-discovered-fact exception and claims the
McCoy decision itself is a new “fact” under subsection 9545(b)(1)(ii). See
PCRA Petition, 7/13/2018, at 3; Appellant’s Brief at 15-18. Such claim is
without merit. Commonwealth v. Reid, 235 A.3d 1124, 1147 (Pa. 2020)
(“As we have related quite a few times, subsequent decisional law does not
amount to a new ‘fact’ under [S]ection 9545(b)(1)(ii) of the PCRA.”) (citation
and some quotation marks omitted; bracket in original).
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Court or Pennsylvania Supreme Court has held the McCoy decision applies
retroactively to cases on collateral review. Our Supreme Court has expressly
held that “the language ‘has been held’ in 42 Pa.C.S. § 9545(b)(1)(iii) means
that a retroactivity determination must exist at the time that the petition is
filed.” Commonwealth v. Abdul-Salaam, 812 A.2d 497, 502 (Pa. 2002).
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
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