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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37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


                       _______________________
(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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