J-S36036-21

*Retired Senior Judge assigned to the Superior Court.

NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P 65.37

COMMONWEALTH OF PENNSYLVANIA,

Appellee

v.

ANDRE STRUM,

 Appellant

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IN THE SUPERIOR COURT OF 

PENNSYLVANIA

 

No. 173 EDA 2021

Appeal from the PCRA Order Dated December 9, 2020 

in the Court of Common Pleas of Philadelphia County 

Criminal Division at No(s): CP-51-CR-0504651-1997

BEFORE: LAZARUS, J., KING, J., AND COLINS, J.*:

MEMORANDUM BY COLINS, J.: FILED DECEMBER 09, 2021

Appellant, Andre Strum, appeals pro se from the order denying his fifth

petition filed pursuant to the Post Conviction Relief Act (PCRA), 42 Pa.C.S. 

§§ 9541–9546. We affirm.

A prior panel of this Court recited the factual and procedural background 

of this case 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.

After both Gunther and Phillips went to the second 

floor of the house, [Appellant] confronted Junior, a 

fellow drug dealer, and conveyed verbal demands to 

relinquish valuables. In response to Junior’s failure to 

comply, [Appellant], and shortly thereafter Johnson, 
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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.

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.

______

1 18 Pa.C.S. §§ 2502, 3701, 903, and 907, respectively.

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 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).
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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 

certificate of appealability on September 2, 2015. Strum v.

Palakovich, 2015 WL 1255907 (E.D.Pa. 2015) (unpublished 

memorandum).

Commonwealth v. Strum, 2277 EDA 2016, 2017 WL 3189207, at *1–2 (Pa. 

Super. July 27, 2017) (citations to the record omitted). On October 20, 2015, 

Appellant filed pro se his fourth PCRA petition, which the PCRA court dismissed 

on June 21, 2016. On July 27, 2017, this Court affirmed. Id. Appellant did 

not seek allowance of appeal with our Supreme Court.

On July 13, 2018, Appellant filed the instant pro se PCRA petition, his 

fifth. He acknowledged his petition was facially untimely but claimed that it 

fell within the exceptions to the PCRA’s time-bar for a newly-discovered fact 

and a newly-recognized, retroactively-applicable constitutional right, citing 

McCoy v. Louisiana, 138 S.Ct. 1500 (2018).

1

 PCRA Petition, 7/13/2018, at 

3, 7. Appellant claimed trial counsel was ineffective for stipulating to evidence

1 As discussed infra, there are three exceptions to the PCRA’s one-year timebar. See 42 Pa.C.S. § 9545(b)(1)(i)-(iii).
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involving an unrelated gun at trial, which Appellant claimed amounted to an 

admission of guilt on the PIC charge. Id. According to Appellant, the McCoy

Court “found such conduct to be a structural error in violation of the Sixth 

Amendment.” Id. at 7. 

On September 18, 2020, pursuant to Pa.R.Crim.P. 907, the PCRA court 

filed notice of its intent to dismiss the petition.2 Appellant filed a response on 

October 6, 2020. The PCRA court dismissed the petition as untimely filed on 

December 9, 2020, and Appellant timely filed this appeal.3 The PCRA court 

did not order Appellant to file a statement pursuant to Pa.R.A.P. 1925(b) and 

none was filed. The PCRA court filed an opinion pursuant to Pa.R.A.P. 1925(a).

On appeal, Appellant presents the following issues for our review:

1. Whether the court below abused its discretion by ruling that 

[A]ppellant failed to invoke an exception to the PCRA’s time-bar?

2. Whether the stringent standard of review used by the court below 

allowed a manifest injustice to occur in this case?

Appellant’s Brief at v (suggested answers omitted).

2 The record does not indicate a reason for the two-year delay. We note that 

“the PCRA court does have the ability and responsibility to manage its docket 

and caseload and thus has an essential role in ensuring the timely resolution 

of PCRA matters.” Commonwealth v. Renchenski, 52 A.3d 251, 260 (Pa. 

2012). 

3 On May 18, 2021, this Court dismissed the instant appeal due to Appellant’s 

failure to file a brief. This Court subsequently received Appellant’s application 

for an extension of time to file a brief, which was dated April 14, 2021. 

Accordingly, we vacated the dismissal order and reinstated the appeal. Order, 

5/26/2021.
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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 determining whether Appellant’s PCRA petition was timely 

filed as this implicates our jurisdiction. Commonwealth v. Monaco, 996 

A.2d 1076, 1079 (Pa. Super. 2010) (“Pennsylvania law makes clear no court 

has jurisdiction to hear an untimely PCRA petition.”). 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 60 days4 of the date on which it 

became available. 42 Pa.C.S. § 9545(b). A PCRA petition may be filed beyond 

the one-year time period only if the petitioner pleads and proves one of the 

following three exceptions:

(i) the failure to raise the claim previously was the result of 

interference by government officials with the presentation of the 

claim in violation of the Constitution or laws of this Commonwealth 

or the Constitution or laws of the United States;

4 Effective December 24, 2018, the legislature amended subsection 

9545(b)(2) to read: “Any petition invoking an exception provided in paragraph 

(1) shall be filed within one year of the date the claim could have been 

presented.” See 42 Pa.C.S. § 9545(b)(2) (effective December 24, 2018). The 

amendment to subsection 9545(b)(2) only applies to “claims arising on 

[December] 24, 2017, or thereafter.” See id., cmt.
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(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)-(iii).

As noted above, Appellant concedes his petition is facially untimely and 

contends that he properly invoked the exception found at subsection 

9545(b)(1)(iii), by relying upon the United States Supreme Court’s decision 

in McCoy.

5

 Appellant’s Brief at 6-8, 18-22. In McCoy, the Court 

held that a capital defendant had the right to direct counsel not to 

admit the defendant’s guilt during the penalty phase of his trial, 

despite counsel’s reasonable belief that admitting guilt was the 

most effective tactic to save the defendant from being sentenced 

to death. The Court further held that trial counsel’s refusal to 

adhere to the defendant's direction in this regard constituted 

structural error necessitating a new trial.

Commonwealth v. Williams, 196 A.3d 1021, 1036 (Pa. 2018) (Wecht, J. 

concurring).

Even assuming arguendo that this decision constitutes recognition of a 

new constitutional right, Appellant has not established that the U.S. Supreme

5 Appellant also invokes the newly-discovered-fact exception and claims the 

McCoy decision itself is a new “fact” under subsection 9545(b)(1)(ii). See

PCRA Petition, 7/13/2018, at 3; Appellant’s Brief at 15-18. Such claim is 

without merit. Commonwealth v. Reid, 235 A.3d 1124, 1147 (Pa. 2020)

(“As we have related quite a few times, subsequent decisional law does not 

amount to a new ‘fact’ under [S]ection 9545(b)(1)(ii) of the PCRA.”) (citation 

and some quotation marks omitted; bracket in original).
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Court or Pennsylvania Supreme Court has held the McCoy decision applies 

retroactively to cases on collateral review. Our Supreme Court has expressly 

held 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). 

As Appellant’s petition does not meet any of the PCRA timeliness 

exceptions, the PCRA court was without jurisdiction to reach the merits of the 

petition. Thus, Appellant's petition was properly dismissed as untimely filed, 

and no relief is due.

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 12/9/2021