Com. v. Strum, A. ( 2017 )

J-S38024-17
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 2277 EDA 2016
Appeal from the PCRA Order June 21, 2016
In the Court of Common Pleas of Philadelphia County
Criminal Division at No(s): CP-51-CR-0504651-1997
BEFORE: GANTMAN, P.J., SHOGAN and FITZGERALD,* JJ.
MEMORANDUM BY SHOGAN, J.: FILED JULY 27, 2017
Appellant, Andre Strum, appeals pro se from the order denying his
fourth petition filed pursuant to the Post Conviction Relief Act (“PCRA”), 42
Pa.C.S. §§ 9541-9546. We affirm.
The PCRA court briefly summarized the facts of the crime, 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. N.T. 12/15/97 at 68-72; 12/16/97 at 37-41,
90-95.
After both Gunther and Phillips went to the second floor of
the house, [Appellant] confronted Junior, a fellow drug dealer,
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*
Former Justice specially assigned to the Superior Court.
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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 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. N.T. 12/15/97
at 73-86, 89-91, 131-145; 12/16/97 at 42-48, 95-99.
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.
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
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1
18 Pa.C.S. §§ 2502, 3701, 903, and 907, respectively.
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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).
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
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certificate of appealability on September 2, 2015. Strum v. Palakovich,
2015 WL 1255907 (E.D.Pa. 2015) (unpublished memorandum).
On October 20, 2015, Appellant filed the instant pro se PCRA petition,
his fourth. On April 12, 2016, pursuant to Pa.R.Crim.P. 907, the PCRA court
filed notice of its intent to dismiss the petition. Appellant filed a response on
April 22, 2016. The PCRA court dismissed the petition as untimely on June
21, 2016, and Appellant filed this timely appeal. The PCRA court did not
order Appellant to file a statement pursuant to Pa.R.A.P. 1925.
Appellant raises the following issues for our review:
A. Whether the trial court abused its discretion in dismissing
Appellant’s Petition for Writ of Habeas Corpus Ad
Subjiciendum where the verdict announced by the Court of
guilty on the First Degree Murder offense was in error in
that the court did not have jurisdiction of the matter,
where the Criminal Information filed in this action were
fatally defective since if failed to recite all of the essential
elements of the offense and failed to inform Appellant of
the precise charge he was required to defend against at
trial?
B. Whether Appellant is illegally confined based on the verdict
and sentence being vitiated and non-existent as a result of
the fatally defective Criminal Information and eliminates all
questions of waiver, timeliness and due diligence as bars
to the relief sought?
Appellant’s Brief at 3 (verbatim).
Initially, we must determine whether this matter is properly before us.
We begin by considering whether the PCRA court accurately considered
Appellant’s petition to be a PCRA petition.
The scope of the PCRA is explicitly defined as follows:
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This subchapter provides for an action by which persons
convicted of crimes they did not commit and persons serving
illegal sentences may obtain collateral relief. The action
established in this subchapter shall be the sole means of
obtaining collateral relief and encompasses all other common law
and statutory remedies for the same purpose that exist when
this subchapter takes effect, including habeas corpus and coram
nobis. This subchapter is not intended to limit the availability of
remedies in the trial court or on direct appeal from the judgment
of sentence, to provide a means for raising issues waived in prior
proceedings or to provide relief from collateral consequences of a
criminal conviction.
42 Pa.C.S. § 9542.
The plain language of this statute demonstrates that the Pennsylvania
General Assembly “intended that claims that could be brought under the
PCRA must be brought under that Act.” Commonwealth v. Hall, 771 A.2d
1232, 1235 (Pa. 2001) (emphases in original). Where a defendant’s claims
“are cognizable under the PCRA, the common law and statutory remedies
now subsumed by the PCRA are not separately available to the defendant.”
Id. at 1235 (citations omitted). By its own language, and by judicial
decisions interpreting such language, the PCRA provides the sole means for
obtaining state collateral relief. Commonwealth v. Yarris, 731 A.2d 581,
586 (Pa. 1999) (citations omitted). Thus, it is well settled that any collateral
petition raising issues with respect to remedies offered under the PCRA will
be considered to be a PCRA petition, Commonwealth v. Deaner, 779 A.2d
578, 580 (Pa. Super. 2001), and a “defendant cannot escape the PCRA time-
bar by titling his petition or motion as a writ of habeas corpus.”
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Commonwealth v. Taylor, 65 A.3d 462, 466 (Pa. Super. 2013) (footnote
omitted).
The question then is whether the particular claims at issue in
Appellant’s petition, i.e., Appellant’s allegations that the trial court did not
have jurisdiction due to a defective bill of information and that his sentence
of life imprisonment is unconstitutional and unlawful, are claims available to
him under the PCRA. Petition for Writ of Habeas Corpus, 10/20/15. We
have reiterated that “the PCRA statute is intended as the sole means of
collaterally challenging a sentence.” Commonwealth v. Concordia, 97
A.3d 366, 372 (Pa. Super. 2014). Indeed, in Commonwealth v. Jackson,
30 A.3d 516 (Pa. Super. 2011), this Court held that a defendant’s motion to
correct an illegal sentence was properly addressed as a PCRA petition,
stating, “[A]ny petition filed after the judgment of sentence becomes final
will be treated as a PCRA petition.” Id. at 521. Moreover, 42 Pa.C.S.
§ 9543(a)(2)(viii) provides that a claim that a proceeding occurred before a
tribunal without jurisdiction must be raised under the PCRA. Because
Appellant’s challenge to his sentence is cognizable under the PCRA,
Appellant is precluded from seeking relief pursuant to a writ of habeas
corpus. Thus, the PCRA court had no authority to entertain the claims
except under the strictures of the PCRA.
“In reviewing the propriety of an order granting or denying PCRA
relief, an appellate court is limited to ascertaining whether the record
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supports the determination of the PCRA court and whether the ruling is free
of legal error.” Commonwealth v. Matias, 63 A.3d 807, 810 (Pa. Super.
2013) (citing Commonwealth v. Johnson, 966 A.2d 523, 532 (Pa. 2009)).
We grant great deference to the PCRA court’s findings that are supported in
the record and will not disturb them unless they have no support in the
certified record. Commonwealth v. Rigg, 84 A.3d 1080, 1084 (Pa. Super.
2014). “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.”
Commonwealth v. Jones, 942 A.2d 903, 906 (Pa. Super. 2008) (quoting
Commonwealth v. Barbosa, 819 A.2d 81 (Pa. Super. 2003)). “[S]uch a
decision is within the discretion of the PCRA court and will not be overturned
absent an abuse of discretion.” Commonwealth v. Mason, 130 A.3d 601,
617 (Pa. 2015).
The timeliness of a PCRA petition is a jurisdictional threshold that may
not be disregarded in order to reach the merits of the claims raised in a
PCRA petition that is untimely. Commonwealth v. Cintora, 69 A.3d 759,
762 (Pa. Super. 2013). “We have repeatedly stated it is the [petitioner’s]
burden to allege and prove that one of the timeliness exceptions applies.
Whether [a petitioner] has carried his burden is a threshold inquiry prior to
considering the merits of any claim.” Commonwealth v. Edmiston, 65
A.3d 339, 346 (Pa. 2013) (internal citation omitted).
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In order to be considered timely, a first, or any subsequent PCRA
petition, must be filed within one year of the date the petitioner’s judgment
of sentence becomes final. 42 Pa.C.S. § 9545(b)(1). A judgment of
sentence “becomes final at the conclusion of direct review, including
discretionary review in the Supreme Court of the United States and the
Supreme Court of Pennsylvania, or at the expiration of time for seeking the
review.” 42 Pa.C.S. § 9545(b)(3).
We affirmed Appellant’s judgment of sentence on November 29, 1999,
and Appellant did not seek review in the Pennsylvania Supreme Court.
Thus, the judgment of sentence became final thirty days after November 29,
1999, on December 29, 1999. Pursuant to the PCRA, Appellant had one
year, or until December 29, 2000, in which to file a timely PCRA petition.
Thus, Appellant’s fourth PCRA petition is patently untimely as it was not filed
until nearly fifteen years later.
An untimely petition nevertheless may be received when the petition
alleges and the petitioner proves that any of the three limited exceptions to
the time for filing the petition, set forth at 42 Pa.C.S. § 9545(b)(1)(i), (ii),
and (iii), is met.2 “However, the PCRA limits the reach of the exceptions by
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2
The exceptions to the timeliness requirement are:
(i) the failure to raise the claim previously was the result of
interference by government officials with the presentation of the
(Footnote Continued Next Page)
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providing that a petition invoking any of the exceptions must be filed within
60 days of the date the claim first could have been presented.”
Commonwealth v. Walters, 135 A.3d 589, 591 (Pa. Super. 2016) (citing
Commonwealth v. Leggett, 16 A.3d 1144, 1146 (Pa. Super. 2011), and
42 Pa.C.S. § 9545(b)(2)).
Our review of the record reveals that Appellant failed to allege, much
less prove to the PCRA court, that any of the exceptions apply. Thus, the
PCRA court was without jurisdiction to grant relief in this matter, and it
properly dismissed Appellant’s PCRA petition as untimely.
We likewise conclude that Appellant has failed to assert on appeal to
this Court that any of the exceptions apply or that the petition was
presented within the applicable sixty-day time frame. Moreover, our review
of Appellant’s contention that the Philadelphia County Court lacked
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(Footnote Continued)
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 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), (ii), and (iii).
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jurisdiction due to an allegedly defective bill of information does not fall
within any of the exceptions to the timeliness rule. Thus, because
Appellant’s fourth PCRA petition was untimely and no exceptions apply, the
PCRA court lacked jurisdiction to address Appellant’s claim and grant relief.
See Commonwealth v. Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002)
(holding that PCRA court lacks jurisdiction to hear untimely petition).
Likewise, we lack the authority to address the merits of any substantive
claims raised in the PCRA petition. See Commonwealth v. Bennett, 930
A.2d 1264, 1267 (Pa. 2007) (“[J]urisdictional time limits go to a court’s right
or competency to adjudicate a controversy.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/27/2017
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