Com. v. Belle, S. ( 2022 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
SAMMY D. BELLE :
:
Appellant : No. 887 EDA 2022
Appeal from the PCRA Order Entered March 14, 2022
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0804001-1980
BEFORE: BOWES, J., LAZARUS, J., and OLSON, J.
MEMORANDUM BY BOWES, J.: FILED NOVEMBER 21, 2022
Sammy D. Belle appeals from the March 14, 2022 order dismissing his
petition for relief pursuant to the Post-Conviction Relief Act (“PCRA”) as
untimely pursuant to 42 Pa.C.S. § 9545(b)(1). We affirm.
In July 1983, a jury found Appellant guilty of second-degree murder,
robbery, and possession of an instrument of crime after he shot and killed
Lester Lawrence while robbing the victim’s vehicle. Following his conviction,
the trial court sentenced Appellant to life imprisonment. On February 24,
1988, Appellant’s judgment of sentence was affirmed on direct appeal. See
Commonwealth v. Belle, 534 A.2d 126 (Pa.Super. 1987) (unpublished
memorandum), appeal denied, 539 A.2d 810 (Pa. 1988) (“Belle I”).
In June 1988, Appellant filed a petition for relief under the since-
repealed Post-Conviction Hearing Act, which was ultimately unsuccessful. See
Commonwealth v. Belle, 593 A.2d 910 (Pa.Super. 1991) (unpublished
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memorandum), appeal denied, 602 A.2d 855 (Pa. 1991) (“Belle II”). In June
2009, Appellant filed a PCRA petition that the PCRA court dismissed as
untimely. That holding was affirmed on appeal. See Commonwealth v.
Belle, 81 A.3d 995 (Pa.Super. 2013) (unpublished memorandum at 4), appeal
denied, 84 A.3d 1061 (Pa. 2014) (“Belle III”).
In October 2019, Appellant filed a third post-conviction petition, which
the PCRA court also deemed untimely. On appeal, this Court affirmed. See
Commonwealth v. Belle, 222 A.3d 854 (Pa.Super. 2019) (non-precedential
decision at 2) (“Belle IV”). On January 2, 2020, Appellant filed a petition for
allowance of appeal to our Supreme Court in Belle IV.
On March 4, 2020, while Appellant’s petition for allocatur remained
pending in Belle IV, he filed the instant PCRA petition. See PCRA Petition,
3/4/20, at 1-10. This filing advanced claims of prosecutorial misconduct and
ineffective assistance of counsel. Specifically, Appellant averred that the
assistant district attorney (“ADA”) attached to this case was “underhanded”
by allegedly suppressing the testimony of an eyewitness to the shooting that
would have exonerated him. Id. at 3. Appellant also alleged that his trial
counsel was ineffective for failing to challenge an eyewitness identification of
Appellant by a woman named Allison Graves. Id. at 4. The PCRA court took
no immediate action with respect to this filing. On July 21, 2020, the Supreme
Court filed an order denying Appellant’s request for a discretionary appeal in
Belle IV. See Commonwealth v. Belle, 237 A.3d 393 (Pa. 2020).
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In November 2021, the PCRA court filed notice of its intent to dismiss
Appellant’s PCRA petition without a hearing pursuant to Pa.R.Crim.P. 907(1).
Two months later, Appellant submitted a document titled “Newly Discovered
Evidence.” See Newly Discovered Evidence, 1/18/22, at 1-10. In this filing
he alleged for the first time that his claims in this matter were allegedly based
upon newly discovered evidence. Id. at 3. His substantive claims for relief
remained unchanged.
On February 22, 2022, the PCRA court entered an order dismissing
Appellant’s petition as untimely pursuant to 42 Pa.C.S. § 9545(b)(1). See
Order, 2/22/22, at 1. Appellant filed a timely notice of appeal to this Court.
See Notice of Appeal, 3/21/22, at 1. The PCRA court did not direct Appellant
to file a concise statement of errors pursuant to Pa.R.A.P. 1925(b) and he did
not file one. The PCRA court filed an opinion pursuant to Rule 1925(a).
Preliminarily, we observe that Appellant filed his March 4, 2020 PCRA
petition while his claims in Belle IV were still on appeal in our Supreme Court.
Pursuant to Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000), it is
well-established that “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.” Under Lark, “a petitioner who files an appeal from an order denying
his prior PCRA petition must withdraw the appeal before he can pursue a
subsequent PCRA petition.” Commonwealth v. Beatty, 207 A.3d 957, 961
(Pa.Super. 2019). Therefore, “the PCRA court is required under Lark to
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dismiss any subsequent PCRA petitions filed while that appeal is pending.” Id.Moreover, permitting a PCRA petition filed in violation of Lark to remain in
abeyance until it is cognizable also violates Pennsylvania law. Id. at 963
(“[N]o court has jurisdiction to place serial [PCRA] petitions in repose pending
the outcome of an appeal in the same case.”).
Since this rule is one of jurisdictional magnitude, this Court has held
that PCRA filings advanced in violation of Lark are legal nullities. See
Commonwealth v. Neisser, 1968 EDA 2019, 2020 WL 603614 at *3
(Pa.Super. 2020) (non-precedential decision) (“Appellant’s premature filing
was a legal nullity, and the PCRA court lacked authority to consider it and
should have dismissed it without prejudice[.]”); see also Commonwealth v.
Pender, 241 A.3d 424 (Pa.Super. 2020) (non-precedential decision at 1)
(same); Commonwealth v. Crossley, 803 EDA 2018, 2019 WL 2024542 at
*2 (Pa.Super. 2019) (non-precedential decision) (same).
Instead of immediately dismissing Appellant’s petition under Lark,
however, the PCRA court permitted Appellant’s premature petition to languish
on the docket sub silentio until the appeal in Belle IV had concluded. Rather,
the PCRA court “should have dismissed the second petition outright under
Lark, when [Appellant] initially filed it during the appeal from the denial of his
prior PCRA petition.” Beatty, supra at 964. It is beyond cavil that the PCRA
court should not have considered the substantive allegations set forth in
Appellant’s March 4, 2020 petition, which was a legal nullity.
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Thus, we conclude that the PCRA court properly dismissed Appellant’s
PCRA petition, albeit on alternative grounds.1, 2 See Commonwealth v.
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1 We recognize that the PCRA court did not actually review the instant petition
until after Appellant’s petition in Belle IV had been denied. Cf.
Montgomery, supra at (Pa.Super. 2018) (en banc) (“Lark holds only that a
PCRA court cannot entertain a new PCRA petition when a prior petition is
still under review.” (emphasis in original; cleaned up)). Moreover, the
Commonwealth has not objected. As such, this case presents the precise
procedural scenario that yielded a plurality decision from our Supreme Court
in Commonwealth v. Robinson, 204 A.3d 326 (Pa. 2018). In that case,
Robinson filed a PCRA petition while a prior PCRA petition remained pending
on appeal. The PCRA court did not adjudicate Robinson’s premature petition
until the prior appeal had concluded and the Commonwealth did not object.
One-half of the equally divided High Court supporting reversal would have
excused Robinson’s premature filing in the interests of justice, while the other
half favoring affirmance felt that such an approach took too much liberty in
excusing noncompliance with a jurisdictional requirement. Compare id. at
329 n.8 (opinion in support of reversal advocating excusing noncompliance
with Lark) with id. at 353 n.3 (opinion in support of affirmance objecting to
excusing noncompliance with Lark). Neither position constitutes binding law.
Commonwealth v. McClelland, 233 A.3d 717, 729 (Pa. 2020). Either
rationale, however, is citable for its persuasive value. Commonwealth v.
Covil, 378 A.2d 841, 844 (Pa. 1977). Even if we were so inclined to excuse
Appellant’s noncompliance with Lark in this matter, we would effectively have
to overrule Beatty. We are precluded from doing so. See Commonwealth
v. Beck, 78 A.3d 656, 659 (Pa.Super. 2013) (“This panel is not empowered
to overrule another panel of the Superior Court.”).
2 Even if we were to charitably construe Appellant’s response to the PCRA
court’s Rule 907 notice as a self-contained PCRA petition, he would not be
entitled to relief in this matter due to the timeliness constraints of the PCRA.
That filing was submitted on January 18, 2022, which renders it facially
untimely by nearly thirty-four years after Appellant’s judgment of sentence
became final for the purposes of the PCRA. See 42 Pa.C.S. § 9545(b)(3).
The only exception discussed by Appellant in this matter relates to allegedly
new evidence. See 42 Pa.C.S. § 9545(b)(1)(ii) (providing that “[a]ny petition
under this subchapter . . . shall be filed within one year of the date the
judgment becomes final” unless the petitioner “pleads and proves that . . . the
(Footnote Continued Next Page)
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Parker, 249 A.3d 590, 595 (Pa.Super. 2021) (“[T]his Court may affirm a
PCRA court’s order on any legal basis.”).
Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 11/21/2022
____________________________________________
facts upon which the claim is predicated were unknown to the petitioner and
could not have been ascertained by the exercise of due diligence[.]”). Finally,
Appellant was required to invoke this exception “within one year of the date
the claim could have been presented.” 42 Pa.C.S. § 9545(b)(2).
Instantly, the allegedly new evidence referenced by Appellant concerns
misconduct allegations aimed at the ADA attached to his case in an unrelated
matter. Appellant claimed to have read these allegations in an unidentified
newspaper article dated February 19, 2019. See Newly Discovered Evidence,
1/18/22, at 3 (“The article was saying, [h]ow [the ADA] would do anything to
get a conviction lie, cheat and withhold evidence from the defense[.]”). In
pertinent part, Appellant did not state with particularity when he had read the
at-issue article. Thus, Appellant cannot establish the timeliness of this
submission even if it were treated as a stand-alone PCRA petition. See
Commonwealth v. Albrecht, 994 A.2d 1091, 1094 (Pa. 2010) (“As appellant
does not explain when he first learned of the facts underlying his PCRA claims,
he has failed to meet his burden of showing he brought his claim within [the
time period required by § 9545(b)(2)].”).
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