Com. v. Steward, D. ( 2019 )

J-S06007-19
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DAVID STEWARD :
:
Appellant : No. 3196 EDA 2018
Appeal from the Order Entered October 10, 2018
In the Court of Common Pleas of Montgomery County Criminal Division
at No(s): CP-46-CR-0020805-1986
BEFORE: BOWES, J., DUBOW, J., and FORD ELLIOTT, P.J.E.
MEMORANDUM BY BOWES, J.: FILED MARCH 27, 2019
David Steward appeals pro se from the order that dismissed his petition
filed pursuant to the Post Conviction Relief Act (“PCRA”). We affirm.
A jury convicted Appellant of first-degree murder and other crimes for
the 1986 shooting of Michael Groll, M.D. Evidence against Appellant included
his oral and written admissions, his drawing of the Grolls’ bedroom and the
positions of all persons present at the time of the murder, and the
identification testimony of Dr. Groll’s wife. Appellant was sentenced to life
imprisonment, this Court affirmed,1 and our Supreme Court denied his petition
for allowance of appeal. Commonwealth v. Steward, 775 A.2d 819
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1 Appellant’s first PCRA petition resulted in the reinstatement of his direct
appeal rights in 1999.
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(Pa.Super. 2001) (unpublished memorandum), appeal denied, 792 A.2d 1253
(Pa. 2001).
Appellant filed subsequent PCRA petitions which resulted in no relief. He
filed the petition at issue on June 8, 2018, claiming therein that his trial
counsel was ineffective in advocating a verdict of second-degree murder
without discussing the strategy with Appellant or obtaining his consent to do
so. PCRA Petition, 6/8/18, at 4. Acknowledging that his petition was facially
untimely, he claimed that the exception for a newly-recognized, retroactively-
applicable constitutional right gave the court jurisdiction. Id. at 3 (citing
McCoy v. Louisiana, 138 S. Ct. 1500 (2018)).
The PCRA court issued notice of its intent to dismiss the petition without
a hearing as untimely, noting that the McCoy decision did not apply because
Appellant’s counsel never admitted to the jury that Appellant was guilty of
murder. Notice of Intent to Dismiss, 8/23/18, at 4. Appellant filed a response
to the notice, contending that the PCRA court erroneously relied upon
transcripts that did not include his counsel’s closing argument, and that other
documents show that counsel indeed “pled [Appellant] guilty to murder in his
closing argument[.]” Objection to Notice of Intent to Dismiss, 9/14/18, at 3.
The PCRA court dismissed Appellant’s petition by order of October 10,
2018. Appellant filed a timely notice of appeal, and both he and the PCRA
court complied with Pa.R.A.P. 1925. On appeal, Appellant raises four issues
claiming PCRA court error.
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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 noting that Appellant has been litigating the issue of
counsel’s decision to plead to the jury for Appellant’s life since at least 2000.
At various times the issue has been found to be waived because counsel’s
closing argument was not transcribed and Appellant failed to prove counsel
was ineffective in failing to order the transcripts. See, e.g., Steward, 775
A.2d 819 (unpublished memorandum at 26-32) (finding issue waived without
prejudice to raise it in a PCRA petition). In one of his appeals, Appellant did
file a statement in the absence of a transcript pursuant to Pa.R.A.P. 1923.
Based upon that filing and several newspaper articles about the trial, the PCRA
court determined that counsel did indeed argue, inter alia, that the killing was
not premeditated and that Appellant should not receive the death penalty
because he showed remorse by confessing. PCRA Court Opinion, 4/16/03, at
14. However, the PCRA court concluded that Appellant failed to allege that
counsel lacked Appellant’s consent, and in any event, was a reasonable
strategy. Id. at 18. This Court affirmed that decision, adopting the PCRA
court’s opinion. Commonwealth v. Steward, 142 EDA 2003 (Pa.Super.
October 20, 2003) (unpublished memorandum at 3).
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Accordingly, there appears to be merit in Appellant’s contentions that
the PCRA court erred in concluding there was no support in the record for his
claim that counsel conceded Appellant’s guilt in the closing argument.
Nonetheless, we conclude that none of Appellant’s claims of error entitles him
to relief because he has failed to establish that the PCRA court or this Court
has jurisdiction to address the substantive merits of his petition.
It is well-settled that the timeliness of a post-conviction petition is
jurisdictional. See, e.g., Commonwealth v. Lewis, 63 A.3d 1274, 1280-81
(Pa.Super. 2013) (quoting Commonwealth v. Chester, 895 A.2d 520, 522
(Pa. 2006) (“[I]f a PCRA petition is untimely, neither this Court nor the [PCRA]
court has jurisdiction over the petition. Without jurisdiction, we simply do not
have the legal authority to address the substantive claims.”)). 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 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 one
year of the date on which it became available. 42 Pa.C.S. § 9545(b).
Appellant contends that he properly invoked the exception found at 42
Pa.C.S. § 9545(b)(1)(iii), which applies where “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.” As
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noted, Appellant sought to satisfy the exception’s requirements by relying
upon the High Court’s decision in McCoy.
In McCoy, the Court held that criminal defendants have a Sixth
Amendment right to reject the opinion of counsel that acknowledging guilt is
the best way to avoid a death sentence and insist on maintaining innocence.
McCoy, supra at 1509. Assuming arguendo that this decision constitutes the
recognition of a new constitutional right, Appellant has not established that
the Court held the decision applies retroactively to cases on collateral review.
Our Supreme Court has expressly stated 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). Thus, Appellant’s petition was
properly dismissed as untimely filed, and no relief is due.2
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 3/27/19
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2 If the Supreme Court issues a decision providing that McCoy does apply
retroactively on collateral review, Appellant may then file a petition within one
year of that decision invoking § 9545(b)(1)(iii).
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