Com. v. Jones, J. ( 2023 )

J-S37039-23
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
JAMES JONES, :
:
Appellant : No. 584 EDA 2023
Appeal from the PCRA Order Entered February 3, 2023
In the Court of Common Pleas of Philadelphia County
Criminal Division at CP-51-CR-0907751-1993
BEFORE: BENDER, P.J.E., MURRAY, J., and SULLIVAN, J.
MEMORANDUM BY MURRAY, J.: FILED NOVEMBER 7, 2023
James Jones (Appellant) appeals pro se from the order dismissing his
fourth petition filed pursuant to the Post Conviction Relief Act (PCRA), 42
Pa.C.S.A. §§ 9541-9546. We affirm.
This Court previously explained:
A jury convicted Appellant of murder of the first degree, robbery,
and possessing an instrument of crime. On April 3, 1995, the
court sentenced him to life imprisonment on the count of murder,
and a consecutive term of four to eight years for robbery. This
Court affirmed his judgment of sentence after a nunc pro tunc
appeal, on August 22, 1997. Commonwealth v. Jones, 704
A.2d 692 (Pa. Super. 1997) (unpublished memorandum). Our
Supreme Court denied allowance of appeal on February 23, 1998.
Commonwealth v. Jones, 716 A.2d 1248 (Pa. 1998). Appellant
did not petition the United States Supreme Court for a writ of
certiorari.
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Commonwealth v. Jones, No. 1438 EDA 2012, at *1 (Pa. Super. Ct. Feb.
19, 2013) (unpublished memorandum) (affirming denial of Appellant’s second
PCRA petition).
Appellant filed the instant pro se PCRA petition, his fourth, on October
23, 2018. On December 19, 2022, the PCRA court issued Pa.R.Crim.P. 907
notice of intent to dismiss the petition without a hearing. The PCRA court
determined Appellant’s petition “was untimely filed and does not plead and
prove any exception to the PCRA’s time-bar.” PCRA Court Opinion, 2/3/23, at
1. The PCRA court entered an order dismissing Appellant’s petition on
February 3, 2023. Appellant timely appealed.
As the Commonwealth observes, Appellant filed the instant PCRA
petition while his petition for allowance of appeal of his third PCRA petition
was pending before the Pennsylvania Supreme Court. Commonwealth Brief
at 4. The Commonwealth argues “the PCRA court lacked jurisdiction to
address the petition and this Court lacks jurisdiction” to address the appeal.1
Id. We agree.
The docket indicates that on August 4, 2017, Appellant filed a notice of
appeal, docketed at No. 2570 EDA 2017, from the denial of his third PCRA
petition. This Court affirmed the dismissal of the third PCRA petition on
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1 In the alternative, the Commonwealth argues the PCRA court properly
dismissed Appellant’s PCRA petition because Appellant “untimely filed his
PCRA petition and failed to plead and prove the applicability of an exception
to the PCRA time-bar.” Commonwealth Brief at 4.
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September 21, 2018. Commonwealth v. Jones, No. 2570 EDA 2017 (Pa.
Super. Sept. 21, 2018) (unpublished memorandum). On October 11, 2018,
Appellant filed a petition for allowance of appeal with the Pennsylvania
Supreme Court at No. 539 EAL 2018. Thus, the record confirms that Appellant
filed the instant PCRA petition while the prior petition was pending review.
On June 12, 2023, this Court issued a rule to show cause directing
Appellant to explain why this appeal should not be quashed pursuant to
Commonwealth v. Lark, 746 A.2d 585, 588 (Pa. 2000) (overruled on other
grounds) (holding that when a PCRA appeal is pending, an appellant may not
file a subsequent PCRA petition until the appeal is resolved).
Appellant filed a response admitting that he filed the instant PCRA
petition while his petition for allowance of appeal was pending. Response,
7/17/23, at 1-2 (unpaginated). By per curiam order, this Court referred the
issue to this merits panel and discharged the rule to show cause.
Pennsylvania law makes clear the trial court has no
jurisdiction to consider a subsequent PCRA petition while an
appeal from the denial of the petitioner’s prior PCRA petition in
the same case is still pending on appeal. Commonwealth v.
Lark, 560 Pa. 487, 746 A.2d 585, 588 (Pa. 2000); see also
Commonwealth v. Montgomery, 181 A.3d 359, 364 (Pa.
Super. 2018) (en banc), appeal denied, 647 Pa. 570, 190 A.3d
1134 (Pa. 2018) (reaffirming that Lark precludes consideration of
subsequent PCRA petition while appeal of prior PCRA petition is
still pending). A petitioner must choose either to appeal from the
order denying his prior PCRA petition or to file a new PCRA
petition; the petitioner cannot do both, i.e., file an appeal and also
file a PCRA petition, because “prevailing law requires that the
subsequent petition must give way to a pending appeal from the
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order denying a prior petition.” Commonwealth v. Zeigler, 148
A.3d 849, 852 (Pa. Super. 2016). In other words, 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. Id. If the petitioner pursues the pending appeal,
then the PCRA court is required under Lark to dismiss any
subsequent PCRA petitions filed while that appeal is pending.
Lark, supra.
Pennsylvania law also states unequivocally that no court has
jurisdiction to place serial petitions in repose pending the outcome
of an appeal in the same case. Id.; see also Commonwealth
v. Porter, 613 Pa. 510, 35 A.3d 4, 12 (Pa. 2012) (stating that
holding serial petitions in abeyance pending appeal in same case
perverts PCRA timeliness requirements and invites unwarranted
delay in resolving cases, as well as strategic litigation abuses).
Commonwealth v. Beatty, 207 A.3d 957, 961 (Pa. Super. 2019).
It is undisputed that Appellant’s petition for allowance of appeal was
pending with the Pennsylvania Supreme Court when Appellant filed the instant
PCRA petition.2 Nonetheless, the PCRA court dismissed Appellant’s petition as
untimely. We may affirm a PCRA court’s decision on any legal basis supported
by the record. Commonwealth v. Howard, 285 A.3d 652, 657 (Pa. Super.
2022). Accordingly, we affirm the dismissal of Appellant’s fourth PCRA petition
for lack of jurisdiction because Appellant’s third PCRA petition was pending
before the Pennsylvania Supreme Court.
Order affirmed.
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2The Pennsylvania Supreme Court denied the petition on April 3, 2019.
Commonwealth v. Jones, 205 A.3d 1234 (Pa. 2019).
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Date: 11/7/2023
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