J-S14021-15


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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. 1375 EDA 2014


                 Appeal from the PCRA Order of April 9, 2014
            In the Court of Common Pleas of Philadelphia County
            Criminal Division at No(s): CP-51-CR-0504651-1997


BEFORE: DONOHUE, OLSON AND MUSMANNO, JJ.

MEMORANDUM BY OLSON, J.:                             FILED APRIL 01, 2015

      Appellant, Andre Strum, appeals pro se from the order entered on

April 9, 2014, dismissing his third petition filed under the Post-Conviction

Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. We affirm.

      The PCRA court has ably summarized the relevant facts and procedural

posture of this case:

        [Appellant] was found guilty after a jury trial of first degree
        murder, robbery, possessing an instrument of crime[,] and
        criminal conspiracy. . . . On July 7, 1998, [Appellant] was
        sentenced to serve a life sentence for the murder
        conviction. Concurrent terms of incarceration of five to ten
        [years’] and four to eight [years’] were imposed on the
        robbery    and     conspiracy   convictions[,]    respectively.
        [Appellant] [] filed a direct appeal [to the Superior Court]
        and[,] on November 29, 1999, the Superior Court affirmed
        [Appellant’s] judgment of sentence. [Commonwealth v.
        Strum, 750 A.2d 377 (Pa. Super. 1999) (unpublished
        memorandum) at 1-7]. Appellant did not thereafter file a
        petition for allowance of appeal with the Pennsylvania
        Supreme Court].
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        [Appellant filed his first PCRA petition] on December 15,
        2000, and counsel was appointed to represent him. After
        an amended petition was filed on [Appellant’s] behalf, the
        PCRA court dismissed the petition on July 10, 2003. The
        Superior Court affirmed the PCRA court’s dismissal on
        February 17, 2005, and the [Pennsylvania] Supreme Court
        denied allocatur on September 14, 2005. . . .
        [Commonwealth v. Strum, 873 A.2d 772 (Pa. Super.
        2005) (unpublished memorandum) at 1-9, appeal denied,
        882 A.2d 1006 (Pa. 2005)].

        [Appellant filed his second PCRA petition on September 29,
        2009. The PCRA court dismissed this petition on November
        4, 2013; Appellant did not file a notice of appeal from the
        PCRA court’s order].

PCRA Court Opinion, 8/13/14, at 1-2 (internal footnotes omitted).

      On December 2, 2013, Appellant filed the current, pro se PCRA petition

– which Appellant titled “writ of habeas corpus.”      Within this petition,

Appellant claimed that he is serving an illegal sentence, as the original

sentencing order “contains no statutory authorization for the sentence

imposed.” Appellant’s Third PCRA Petition, 12/2/13, at 4.

      On January 7, 2014, the PCRA court provided Appellant with notice

that, in 20 days, it intended to dismiss Appellant’s PCRA petition without a

hearing, as the petition was untimely.   PCRA Court Order, 1/7/14, at 1;

Pa.R.Crim.P. 907(1).   On April 9, 2014, the PCRA court entered an order

dismissing Appellant’s PCRA petition. PCRA Court Order, 4/9/14, at 1.

      Appellant filed a timely notice of appeal and Appellant now raises the

following claim:




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         Whether the [PCRA] court abused its discretion in
         dismissing Appellant’s petition for writ of habeas corpus ad
         subjiciendum?

Appellant’s Brief at 3 (some internal capitalization omitted).

      On appeal, Appellant claims that the PCRA court erred in construing

his self-styled “petition for a writ of habeas corpus” as a PCRA petition.

According to Appellant, the PCRA does not encompass his illegal sentencing

claim and, therefore, the timeliness requirements of the PCRA do not apply

to his petition.   Appellant’s contention fails and the PCRA court properly

dismissed Appellant’s patently untimely, serial PCRA petition.

      We “review an order granting or denying PCRA relief to determine

whether the PCRA court’s decision is supported by evidence of record and

whether its decision is free from legal error.”   Commonwealth v. Liebel,

825 A.2d 630, 632 (Pa. 2003).

      The PCRA “provides for an action by which persons convicted of crimes

they did not commit and persons serving illegal sentences may obtain

collateral relief.” 42 Pa.C.S.A. § 9542. As the statute declares, the PCRA “is

the sole means of obtaining collateral relief and encompasses all other

common law and statutory remedies . . . including habeas corpus and coram

nobis.” Id.; see also Commonwealth v. Ahlborn, 699 A.2d 718, 721 (Pa.

1997).    Thus, under the plain terms of the PCRA, “if the underlying

substantive claim is one that could potentially be remedied under the PCRA,

that claim is exclusive to the PCRA.” Commonwealth v. Pagan, 864 A.2d

1231, 1233 (Pa. Super. 2004) (emphasis in original).

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      Within his “petition for a writ of habeas corpus” Appellant claims that

he is entitled to relief because his sentence is illegal.   However, the PCRA

undoubtedly encompasses Appellant’s claim, as the claim concerns “matters

affecting [Appellant’s] conviction [or] sentence.”          Commonwealth v.

Judge, 916 A.2d 511, 520 (Pa. 2007), quoting Coady v. Vaughn, 770 A.2d

287, 293 (Pa. 2001) (Castille, J., concurring); see also 42 Pa.C.S.A. § 9542

(“[the PCRA] provides for an action by which persons convicted of crimes

they did not commit and persons serving illegal sentences may obtain

collateral relief”).

      Appellant’s claim thus falls under the rubric of the PCRA and, since the

PCRA encompasses Appellant’s claim, Appellant “can only find relief under

the   PCRA’s     strictures.”   Pagan,    864   A.2d   at    1233;   see   also

Commonwealth v. Jackson, 30 A.3d 516, 521 (Pa. Super. 2011)

(“[petitioner’s legality of sentence] claim is cognizable under the PCRA . . . .

[Thus, petitioner’s] ‘motion to correct illegal sentence’ is a PCRA petition and

cannot be considered under any other common law remedy”).

      The PCRA contains a jurisdictional time-bar, which is subject to limited

statutory exceptions.      This time-bar demands that “any PCRA petition,

including a second or subsequent petition, [] be filed within one year of the

date that the petitioner’s judgment of sentence becomes final, unless [the]

petitioner pleads [and] proves that one of the [three] exceptions to the

timeliness requirement . . . is applicable.” Commonwealth v. McKeever,


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947 A.2d 782, 785 (Pa. Super. 2008); 42 Pa.C.S.A. § 9545(b).             Further,

since the time-bar implicates the subject matter jurisdiction of our courts,

we are required to first determine the timeliness of a petition before we are

able to consider any of the underlying claims. Commonwealth v. Yarris,

731 A.2d 581, 586 (Pa. 1999). Our Supreme Court has explained:


        the PCRA timeliness requirements are jurisdictional in
        nature and, accordingly, a PCRA court is precluded from
        considering untimely PCRA petitions.               See, e.g.,
        Commonwealth v. Murray, 753 A.2d 201, 203 (Pa. 2000)
        (stating that “given the fact that the PCRA's timeliness
        requirements are mandatory and jurisdictional in nature, no
        court may properly disregard or alter them in order to reach
        the merits of the claims raised in a PCRA petition that is
        filed in an untimely manner”); Commonwealth v. Fahy,
        737 A.2d 214, 220 (Pa. 1999) (holding that where a
        petitioner fails to satisfy the PCRA time requirements, this
        Court has no jurisdiction to entertain the petition). [The
        Pennsylvania Supreme Court has] also held that even where
        the PCRA court does not address the applicability of the
        PCRA timing mandate, th[e court would] consider the issue
        sua sponte, as it is a threshold question implicating our
        subject matter jurisdiction and ability to grant the requested
        relief.

Commonwealth v. Whitney, 817 A.2d 473, 475-476 (Pa. 2003).

      In the present case, this Court affirmed Appellant’s judgment of

sentence on November 29, 1999 and Appellant did not thereafter file a

petition for allowance of appeal with our Supreme Court. Thus, Appellant’s

judgment of sentence became final for purposes of the PCRA on December

29, 1999, when the period for seeking review in our Supreme Court expired.

42 Pa.C.S.A. § 9545(b)(3). As Appellant did not file his current petition until

December 2, 2013, the current petition is manifestly untimely and the

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burden thus fell upon Appellant to plead and prove that one of the

enumerated exceptions to the one-year time-bar applied to his case. See

42 Pa.C.S.A. § 9545(b)(1); Commonwealth v. Perrin, 947 A.2d 1284,

1286 (Pa. Super. 2008) (to properly invoke a statutory exception to the one-

year time-bar, the PCRA demands that the petitioner properly plead and

prove all required elements of the relied-upon exception).

     Here, Appellant did not attempt to plead a valid statutory exception to

the PCRA’s one-year time-bar.     Thus, since Appellant’s PCRA petition is

manifestly untimely and Appellant did not plead any of the statutory

exceptions to the one-year time-bar, our “courts are without jurisdiction to

offer [Appellant] any form of relief.” Commonwealth v. Jackson, 30 A.3d

516, 523 (Pa. Super. 2011). We, therefore, affirm the PCRA court’s April 9,

2014 order, dismissing Appellant’s PCRA petition without a hearing.

     Order affirmed.

Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 4/1/2015




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