Com. v. McDowell, D.

J-S34039-18
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
:
v. :
:
:
DEONTAE ALLEN MCDOWELL :
:
Appellant : No. 82 WDA 2018
Appeal from the Order Entered December 5, 2017
In the Court of Common Pleas of Beaver County Criminal Division at
No(s): CP-04-CR-0000870-2015,
CP-04-CR-0000874-2015
BEFORE: BOWES, J., STABILE, J., and STRASSBURGER*, J.
CONCURRING STATEMENT BY BOWES, J.: FILED: August 29, 2018
I concur. However, I would not order the PCRA court to “dismiss
Appellant’s PCRA petition as premature.” Majority memorandum at 6. I agree
that, pursuant to Commonwealth v. Lark, 746 A.2d 585 (Pa. 2000), the
PCRA court lacked jurisdiction to address this PCRA petition, and therefore its
order dismissing the petition on its merits was erroneous.
Simultaneously, it does not appear that our precedents have addressed
whether PCRA courts must do so. In my view, PCRA courts retain the
discretion to hold a petition subject to the Lark holding in abeyance, ensuring
that the PCRA petition will be considered filed within sixty days of when a prior
appeal is resolved. Pro se petitioners often file serial petitions in violation of
Lark due to an understandable desire to prevent a later finding that the
petition should have been filed at an earlier time, especially in cases involving
____________________________________
* Retired Senior Judge assigned to the Superior Court.
J-S34039-18
newly-discovered facts. PCRA courts may well wish to manage their dockets
in a way that gives the benefit of the doubt by holding such petitions in
abeyance until prior appeals have terminated. In the absence of binding
precedent to the contrary, I do not believe that the PCRA court is required to
dismiss the petition. I therefore concur.
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