J-S30005-19


NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

 COMMONWEALTH OF PENNSYLVANIA             :   IN THE SUPERIOR COURT OF
                                          :        PENNSYLVANIA
                                          :
              v.                          :
                                          :
                                          :
 EDWARD SISTRUNK                          :
                                          :
                   Appellant              :   No. 4074 EDA 2017

             Appeal from the PCRA Order November 29, 2017
           In the Court of Common Pleas of Philadelphia County
           Criminal Division at No(s): CP-51-CR-0207672-1971


BEFORE: PANELLA, P.J., KUNSELMAN, J., and MUSMANNO, J.

MEMORANDUM BY PANELLA, P.J.:                      FILED OCTOBER 03, 2019

     Edward Sistrunk appeals the November 29, 2017, order from the

Philadelphia County Court of Common Pleas, which dismissed his Post

Conviction Relief Act (“PCRA”) petition as untimely.     See 42 Pa.C.S.A. §§

9541-9546. We affirm.

     As summarized by the PCRA court:

     In 1971, Edward Sistrunk was convicted of participating in the
     robbery and arson of a furniture store, during which one employee
     was killed and several others were assaulted. On state collateral
     review, he was awarded a new trial due to ineffective assistance
     of counsel. In 1981, he was tried again on the same charges and
     was convicted of murder in the first-degree, arson, burglary, four
     counts of aggravated robbery, four counts of assault and battery
     with intent to murder, and criminal conspiracy.

     On direct appeal, appellate counsel did not pursue a jury selection
     equal protection claim. [Sistrunk’s] conviction was affirmed by
     [our Court], and the Pennsylvania Supreme Court denied review.
     [Sistrunk] filed his first PCRA petition, raising two issues: whether
     he was entitled to relief under Batson [v. Kentucky, 471 U.S.
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     1052 (1985)], which held that the Equal Protection Clause is
     violated whenever a state prosecutor exercises a peremptory
     challenge to exclude a juror because of race; and whether he was
     denied effective assistance of appellate counsel due to counsel’s
     failure to pursue the jury selection issue on direct appeal.

     The PCRA court held a hearing in 1992, during which [Sistrunk]
     and the prosecutor testified. The court held that [Sistrunk] was
     not entitled to relief under Batson because the issue had not been
     presented on direct appeal. Nonetheless, the court found that
     even if Batson had applied, the prosecutor had presented
     “credible and racially neutral reasons for each peremptory
     challenge she exercised,” and that she “did not exercise
     peremptory challenges in a purposefully racially discriminatory
     manner.” Sistrunk v. Vaughn, 96 F.3d 666 ([3d Cir.] 1996) at
     669. The court held that counsel was not ineffective for failing to
     raise [the] jury selection issue on appeal because she was not
     required to predict future developments in the law.

     On appeal from the PCRA decision, [we] found the Batson claim
     had been “previously litigated” within the meaning of the PCRA,
     because it was not raised on direct appeal. Notwithstanding that
     finding, [we] analyzed the Batson issue under the ineffective
     assistance claim and found it to be meritless. [We] acknowledged
     that [Sistrunk] established a prima facie case under Batson, then
     deferred to the PCRA court’s findings that the prosecutor had
     credible and racially neutral reasons for each of her peremptory
     challenges. In 1995, the Pennsylvania Supreme Court denied
     review.

     Appellant then filed a federal habeas corpus petition. Without
     holding a hearing, and while acknowledging that federal law
     required a federal habeas court to defer to state court findings of
     fact, the magistrate judge held that the record did not support the
     state court’s finding of fact regarding the state’s peremptory
     challenges. The district court adopted the magistrate judge’s
     recommendation and ordered petitioner retried or released. In
     1996, the Third Circuit Court of Appeals reversed the district court,
     finding that federal courts were barred from hearing [Sistrunk’s]
     federal claims on their merits absent a showing of cause and
     prejudice or a demonstration of innocence. The United States
     Supreme Court denied certiorari.




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      A decade later, on May 31, 2016, [Sistrunk] filed the instant PCRA
      petition claiming that [Foster v. Chatman] [136 S. Ct. 1737
      (2016)] states a new rule that should be retroactively applied to
      his case.

PCRA Court Opinion, 8/24/18, at 1-3 (footnotes and citations omitted).

      Sistrunk’s notice of appeal was timely filed on December 7, 2017, and

he submitted his statement of matters complained of on appeal on April 26,

2018. His brief presents three questions for our review:

      1) Whether the PCRA court erred in denying Sistrunk’s petition
         where he argued that Foster states a new and retroactively
         applicable rule of law: that no ineffectiveness needs to be
         shown where there is any peremptory strike used for the
         purpose of excluding a person of a certain race.

      2) Whether the Superior Court should “set a precedent” on the
         issue of racism in jury selection.

      3) Whether the PCRA’s purpose, as “an all-encompassing
         collateral attack on the validity of convictions” is
         constitutionally permissible if it does not “permit correction of
         a pattern of racism.”

See Appellant’s Brief, at 7-8.

      Before we can reach the merits of Sistrunk’s claims, we must first

consider whether his PCRA petition is timely. See Commonwealth v. Miller,

102 A.3d 988, 992 (Pa. Super. 2014). Our law is clear that the PCRA’s time

restrictions are jurisdictional in nature, and “if a PCRA petition is untimely,

neither this Court nor the trial court has jurisdiction over the petition. Without

jurisdiction, we simply do not have the legal authority to address the

substantive claims.” Commonwealth v. Albrecht, 994 A.2d 1091, 1093 (Pa.

2010) (citation omitted).

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       A PCRA petition, including a second or subsequent one, must be
       filed within one year of the date the petitioner's judgment of
       sentence became final, unless he pleads and proves one of the
       three exceptions outlined in 42 Pa.C.S.[A.] § 9545(b)(1). A
       judgment becomes final at the conclusion of direct review by this
       Court or the United States Supreme Court, or at the expiration of
       the time for seeking such review. 42 Pa.C.S.[A.] § 9545(b)(3).


       The PCRA's timeliness requirements are jurisdictional; therefore,
       a court may not address the merits of the issues raised if the
       petition was not timely filed. The timeliness requirements apply to
       all PCRA petitions, regardless of the nature of the individual claims
       raised therein. The PCRA squarely places upon the petitioner the
       burden of proving an untimely petition fits within one of the three
       exceptions.

Commonwealth v. Jones, 54 A.3d 14, 16-17 (Pa. 2012) (some internal

citations and footnote omitted).

       Sistrunk’s judgment of sentence became final on June 24, 1987, 60 days

after the Pennsylvania Supreme Court denied his petition for allocatur. See

42 Pa.C.S.A. § 9545(b)(3) (“A judgment 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 time for

seeking the review.”); see also Commonwealth v. Monaco, 996 A.2d 1076,

1081 n.2 (Pa. Super. 2009).1                   Accordingly, Sistrunk’s petition, filed



____________________________________________


1 When our Supreme Court denied Sistrunk’s petition for allocator, he had
sixty days to file with the Clerk of the United States Supreme Court a petition
for a writ of certiorari under what was then U.S. Sup. Ct. R. 20.1. Effective
January 1, 1990, Rule 20.1 was renumbered as U.S. Sup. Ct. R. 13. The
renumbering also enlarged the time for the filing of a petition for a writ of
certiorari to ninety days.

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approximately 30 years later, is facially untimely. As a result, the PCRA court

lacked jurisdiction to review Sistrunk’s petition unless he was able to

successfully plead and prove one of the statutory exceptions to the PCRA’s

time-bar.    See 42 Pa.C.S.A. §§ 9545(b)(1)(i-iii).   Moreover, Sistrunk was

required to file his petition within 60 days of the date the claim could have

first been presented. See 42 Pa.C.S.A. § 9545(b)(2).2

       To circumvent the PCRA time-bar, Sistrunk claims that he is asserting a

constitutional right “that was recognized by the Supreme Court of the United

States or the Supreme Court of Pennsylvania,” id., at 9545(b)(1)(iii), that this

right was established after his time-bar took effect, and, at least implicitly,

that this right has been held by either the Supreme Court of the United States

or the Supreme Court of Pennsylvania to apply retroactively. See id.

       Specifically, Sistrunk argues that Foster v. Chatman, 136 S.Ct. 1737

(2016), created both a newly-recognized constitutional right and has been

held to be applicable retroactively. See Appellant’s Brief, at 13-17. Sistrunk

claims that Foster “is an extension of Batson, and that the three[-]part test

in Batson should be applied to each and every strike which the defense



____________________________________________


2 On October 24, 2018, the General Assembly amended section 9545(b)(2) to
expand the time for filing a petition from 60 days to one year from the date a
claim could have been presented. See 2018 Pa.Legis.Serv.Act 2018-146(S.B.
915), effective December 24, 2018. The amendment applies only to claims
arising one year before the effective date of this section, i.e., December 24,
2017, or thereafter. As Sistrunk filed the instant petition on May 31, 2016, the
sixty day limit applies.

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objects to, to determine if even one man or woman was excluded on the basis

of race.” Id., at 15.

      First, Sistrunk, by his own words, concedes that Foster is merely an

extension of Batson and not a new constitutional right. See Appellant’s Brief,

at 15. Second, Sistrunk has cited to no authority holding that Foster, either

by its own dictates or any of its progeny, applies retroactively act all, much

less on collateral appeal.    The Foster opinion does not use the words

“retroactive,” “retroactively,” or anything analogous to the principle of

retroactivity that could possibly serve as the basis for a new, retroactive

constitutional right.

      Pursuant to the PCRA, “a new rule of constitutional law is applied

retroactively to cases on collateral review only if the United States Supreme

Court or our Supreme Court specifically holds it to be retroactively applicable

to those cases.” Commonwealth v. Miller, 102 A.3d 988, 995 (Pa. Super.

2014) (emphasis added). Thus, even assuming that Foster did announce a

new constitutional right, absent any language from either court declaring

Foster to be retroactive, we are without the power to sua sponte conduct our

own retroactivity analysis. See id. Therefore, Sistrunk has failed to satisfy

the new constitutional right exception to the time-bar.

      As Sistrunk has failed to prove an exception to the PCRA’s time-bar that

would allow him to file an untimely petition, we find that the PCRA court

properly dismissed his PCRA petition as untimely.


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     Order affirmed.



Judgment Entered.




Joseph D. Seletyn, Esq.
Prothonotary



Date: 10/3/19




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