Com. v. Veneri, A. ( 2015 )

J-S69045-15
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA, IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY JOHN VENERI,
Appellant No. 942 EDA 2015
Appeal from the Order of March 6, 2015
In the Court of Common Pleas of Delaware County
Criminal Division at No(s): CP-23-CR-0003526-1978
CP-23-CR-0003713-1978
BEFORE: GANTMAN, P.J., FORD ELLIOTT, P.J.E., and OLSON, J.
MEMORANDUM BY OLSON, J.: FILED DECEMBER 29, 2015
Appellant, Anthony John Veneri, appeals pro se from the order entered
March 6, 2015, dismissing his petition for writ of mandamus for lack of
jurisdiction. We affirm.
We briefly summarize the facts and procedural history of this case as
follows. A jury found Appellant guilty of two separate robberies and related
offenses in 1979. Since then, Appellant filed 13 petitions for collateral relief,
including several petitions under the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. The PCRA court denied relief on Appellant’s twelfth
PCRA petition on June 11, 2014. Appellant appealed that decision to this
Court. While that appeal was pending, on January 21, 2015, Appellant filed
a pro se “petition for writ of mandamus, nunc pro tunc, demanding release
from illegal prosecution.” On March 6, 2015, the PCRA court treated the
J-S69045-15
mandamus petition as a PCRA petition and dismissed it, citing a lack of
jurisdiction because Appellant’s twelfth PCRA petition was still pending on
appeal. This timely appeal followed.1
On appeal, Appellant presents the following issues, pro se, for our
review:
1. Whether [Appellant] was prosecuted illegally on 1-31-79
because the bills of information[] were not sign[ed] by
the District Attorney?
2. Whether [Appellant] was denied effective assistance of
trial counsel?
3. Whether [Appellant] is entitled to the equal protection of
the laws, guaranteed by the 6th, 8th and 14th
Amendments to the U.S. Constitution?
Appellant’s Brief at 2.
Initially, we note that while Appellant stylizes his petition as one
sounding in mandamus, his individual claims all fall within the parameters of
the PCRA. “We have repeatedly held that the PCRA provides the sole means
for obtaining collateral review, and that any petition filed after the judgment
of sentence becomes final will be treated as a PCRA petition.”
Commonwealth v. Johnson, 803 A.2d 1291, 1293 (Pa. Super. 2002).
Hence, the PCRA court properly treated Appellant’s mandamus petition
under the PCRA.
____________________________________________
1
Appellant filed two notices of appeal. We accepted the first one filed on
March 24, 2015 and dismissed the second as duplicative. The PCRA court
filed an opinion pursuant to Pa.R.A.P. 1925(a) on July 16, 2015.
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“Our standard of review in an appeal from the grant or denial of PCRA
relief requires us to determine whether the ruling of the PCRA court is
supported by the record and is free from legal error.” Commonwealth v.
Lesko, 15 A.3d 345, 358 (Pa. 2011). “[W]hen an appellant's PCRA appeal is
pending before a court, a subsequent PCRA petition cannot be filed until the
resolution of review of the pending PCRA petition by the highest state court
in which review is sought, or upon the expiration of the time for seeking
such review.” Commonwealth v. Breakiron, 781 A.2d 94, 99 (Pa. Super.
2001). When a PCRA petition is appealed, the PCRA court is divested of
jurisdiction. Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000).
Here, Appellant appealed the June 11, 2014 denial of relief on his prior
PCRA petition.2 While that appeal was pending before this Court, he filed the
current mandamus petition on January 21, 2015. The PCRA court properly
treated the mandamus petition as a subsequent PCRA petition. Because
there was another PCRA appeal pending, the PCRA court was divested of
jurisdiction to entertain Appellant’s current claims. Thus, dismissal was
proper.
Order affirmed.
____________________________________________
2
We affirmed the denial of relief on Appellant’s prior PCRA petition in an
unpublished memorandum on April 21, 2015. See Commonwealth v.
Veneri, 121 A.3d 1136 (Pa. Super. 2015).
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Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 12/29/2015
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