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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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(Pa.Super. 2001) (unpublished memorandum), appeal denied, 792 A.2d 1253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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